Picking up phone in stationary traffic jam - temporary lights.

[Dom69]

Hi.

On November 25th 2022 I was sat in a long line of traffic at temporary traffic lights on my morning commute. About 100 metres back from the lights with clear view that it was red. My car engine was on the eco 'Auto Off when stopped' setting and auto hold handbrake engaged when stopped.

 

As i was late for work the office called, i answered on the hands free but they couldn't hear me so I picked up the phone and said I was stuck in traffic and will be about 10 minutes late then hung up. Lights still clearly red.

 

At that moment a bike copper drove up, tapped on the window and said pull in at the next opportunity. We then sat there next to each other for a further 5 minutes waiting for the lights to change.

 

Upon receiving an email from Sussex Police later that evening I requested any evidence be forwarded to myself so I can make a judgement on what to do next.

 

Last week on 9/5/23 I received a Single Justice Procedure Notice which needs response within 21 days on how to plead. I know there is probably no point contesting Not Guilty in court but £200 and 6 points seems very excessive considering the circumstances and could affect my job. I drive all day every day for work and have no previous offences.

 

Is there anything else I can do - courses, lesser charge and in reality I was not driving whilst on the phone and was in full control of my vehicle.

 

Any help greatly appreciated.

 

Kind regards

 

Dom

[dx100uk]

sadly you were in the vehicle on the public highway, the fact it wasnt running is totally immaterial.

[Dom69]

I understand that but I would argue mitigating circumstances and that the penalty in no way fits the proposed offence.

I could do 40 mph past a gatso through a residential side street with kids playing by the road and get £100 and 3 point fine.

[Ethel Street]

This is the police's own information site about the offence. It's hard to see how you could have any defence to the charge.  Whether you think it's fair compared to speeding is irrelevant I'm afraid. 

 

Just a moment...

WWW.POLICE.UK

 

Tagging @Man in the middle who may be able to comment further, but AFAIK this is an "absolute"  offence with a statutory £200 fine + 6 points which no amount of 'mitigating circumstances' can reduce.

[BazzaS]

https://www.gov.uk/using-mobile-phones-when-driving-the-law

that page isn’t a definitive statement of the law, but is persuasive, and notes

“The law still applies to you if you’re:

• stopped at traffic lights
• ……….
• driving a car that turns off the engine when you stop moving”

So I doubt the “auto brake was in, auto engine off was active” gives you a defence,

nor that you were stopped in a queue of traffic.

 

That you say you were still in control of your vehicle doesn’t matter when you consider you aren’t being prosecuted for not being in control, but instead using the handheld while driving.

 

Compating it with speeding past a Gatso isn’t likely to be a useful tactic; the law was changed to increase the penalty.

 

I suspect your opportunity was to persuade the traffic officer to give you words of advice and not submit it for prosecution : that ship has sailed.

[Dom69]

It says in the officers report the defendant requested leniency due to the circumstances around the vehicle and traffic situation.

 

Would this have likely been recorded on a body camera or anything?

[BazzaS]

are you saying it isn’t true?

 

if you aren’t disputing it, what difference if it is or isn’t on body cam.

if the officer decided to report you for consideration of prosecution : then up to the CPS, who have summonsed you, then up to the court

a) if you are guilty or not,

b) if guilty, the sentence: decided from the guidelines

 

The penalty was increased to 6 points, as well as a Band A fine (maximum Level 3)

 

https://www.sentencingcouncil.org.uk/offences/magistrates-court/item/offences-appropriate-for-imposition-of-fine-or-discharge/3-offences-appropriate-for-imposition-of-fine-or-discharge/#Use_of_mobile_telephone

 

 

 

Edited May 15, 2023 by BazzaS

[Man in the middle]

Whatever "mitigating circumstances" you put forward, the court must impose six points as that is what the statute demands.

 

There is one exception to this:

if the court finds there are "Special Reasons Not to Endorse" then they may record a conviction but impose no points.

 

In the circumstances you describe the chance of success with this lies somewhere between nought and zero, but it will cost you nothing so worth a try. Quite how you would make such an argument is difficult to imagine; you were driving and you did use a hand held phone. It's not even as if you were "sort of parked but not quite." You were in a queue waiting for traffic lights to change.

 

I don't know where you got the £200 from. That is the amount payable when a fixed penalty is offered and for some reason you were not offered one.

 

As above, the guidelines suggest a fine of half a week's net income (reduced by a third for a guilty plea).

You will also pay a surcharge (known commonly as a "Victim Surcharge") of 40% of the fine and around £90 prosecution costs. So if you take home £600 pw it will cost you £200 fine, £80 surcharge and £90 costs = £370. The fine is capped at £1,000, so whatever your income, the maximum you will pay by way of a fine is £667.

 

One avenue worth exploring is the fixed penalty (or lack of it). From your description there are no aggravating circumstances and it is hard to understand why you were not offered one unless it is this:

 

Quote

Upon receiving an email from Sussex Police later that evening I requested any evidence be forwarded to myself so I can make a judgement on what to do next.

 

Whilst it would be unusual, the police may have assumed that you were going to challenge the charge and so did not bother to offer you a FP. This is only a guess and if you want to minimise the financial penalty (though it will not effect the points) you need to find out why no FP was offered.

 

If you agree to the matter being dealt with under the "Single Justice" procedure you cannot attend your hearing so you must ask, as part of your response to the SJPN, if the court would consider sentencing you at the FP level. The SIngle Justice hearing your case would probably be unlikely to do this as he or she will have no information from the prosecutor regarding the lack of a FP offer (prosecutors do not attend SJ hearings either). To be sure of having this matter addressed you would have to ask for a hearing in the normal Magistrates' Court where you can attend and ask the prosecutor why no FP was offered. 

 

Regarding your request at the roadside to see some leniency exercised, unless they decide to make no report, individual officers do not decide what action will be taken. They simply file a report and the "back office" makes that decision.

Edited May 15, 2023 by dx100uk
spacing

[Dom69]

I received a Fixed Penalty letter on 05/12/22 (dated 25/11/22) but had been advised by a solicitor to write to Sussex Safer Roads immediately requesting disclosure of all evidence involved in the case within 28 days upon which I could then make a decision on what path to take. A letter was posted on 15/12 to Sussex Safer Roads

 

I had no response and emailed them again to follow up on 16/1/23 again receiving no response other than the automated acknowledgement of '

 

Your email is important to us however please be aware we receive a high volume of correspondence and a response can take up to 10 working days.

 

In the meantime, the following information may assist you with your query'

 

No further communication was received for 5 months until the SJPN turned up this week.

[BazzaS]

Point this out asking for sentencing to be at the fixed penalty level, as advised by MitM.

your aim is to minimise your fine, you can still expect 6 points.

[Man in the middle]

25 minutes ago, Dom69 said:

...but had been advised by a solicitor to write to Sussex Safer Roads immediately requesting disclosure of all evidence involved in the case within 28 days upon which I could then make a decision on what path to take.

 

Then you were badly advised, I'm afraid.

 

You are not entitled to any evidence before deciding whether or not to accept a fixed penalty and the solicitor should have known that. The idea of a fixed penalty offer is that you accept the allegation as it stands and are willing to dispose of the matter without it going to court.

 

The police are under no obligation to provide you with anything until they begin court proceedings and then you are only entitled to the "Initial Details of the Prosecution Case" (IDPC). This, roughly speaking is the evidence the police intend to rely on to convict you, to enable you to enter an informed plea. You are not entitled to see "all evidence involved with the case" unless the court agrees to anything over and above the IDPC before your trial.

 

This is something else the solicitor should have known I hope you didn't pay him or her any money. If you did I would seek a refund.

 

My advice would be to simply plead guilty in response to the SJPN. You can mention the precise circumstances and request some leniency.

 

A kindly Single Justice may reduce the fine a little, especially as you seem to have been badly misled. You might even be lucky and be sentenced at the fixed penalty level, though I would be surprised. But six points is the inevitable outcome unless something spectacularly unexpected happens.

[Dom69]

Okay, thank you for the advice.

I'll let you know how it goes.

[Manxman in exile]

21 hours ago, Dom69 said:

I received a Fixed Penalty letter on 05/12/22 (dated 25/11/22) but had been advised by a solicitor to write to Sussex Safer Roads immediately requesting disclosure of all evidence involved in the case within 28 days upon which I could then make a decision on what path to take. A letter was posted on 15/12 to Sussex Safer Roads...

 

Just for clarity - you say "... but had been advised by a solicitor..." rather than "... was advised by a solicitor..."

 

To me "had been" means that you had already been advised to ask for evidence before the FPN letter arrived.  But "was" means you were advised after the FPN letter arrived.

 

If you were advised "after" you received the FPN letter I'd certainly be complaining to the solicitor and I'd also want a refund.  I think I'd want them to pay the excess of the fine over the FPN too!

 

And complain to the SRA...

[BazzaS]

Better to complain to the legal ombudsman (their remit is wider than the SRA and they can refer to the SRA), BUT

a) you need to exhaust the solicitor’s complaint procedure first, and

b) with the issues raised in MitM’s post at #13 about if the advice was before or after the FPN, so if you have a complaint or not!

Edited May 16, 2023 by BazzaS

[Man in the middle]

I'm not so sure that it makes any difference.

 

Since the OP was stopped at the time of the offence he knew that enforcement was very likely. He either spoke to a solicitor between being stopped and receiving the FP offer or he spoke to one after receiving it. I'm inclined to think it was after he received it, as his description (of his interaction with the solicitor) was this:

 

"...I had been advised by a solicitor to write to Sussex Safer Roads immediately requesting disclosure of all evidence involved in the case within 28 days upon which I could then make a decision on what path to take."

 

This seems to indicate to me that he had been advised to ask for evidence in order to decide whether to accept the FP or not and the "within 28 days" seems to suggest that the solicitor was (at least) aware that the FP must be taken up within that period.  

 

In either event, to advise him to seek evidence, whether he had already received a FP offer or not, was clearly very poor advice. Any half decent solicitor advising on motoring matters should know that the police have no obligation to provide evidence at that stage and if they don't know they should not offer advice at all. Unless he intended to plead Not Guilty (which would have been even poorer advice on the face of it) allowing the FP to lapse has almost certainly cost him a tidy sum. Of course the OP has not said whether he paid for this poor advice or whether anything else accompanied it (e.g. "...and if you don't get the evidence you will have to decide whether to accept the FP or not without it.") 

Edited May 16, 2023 by Man in the middle

[Dom69]

Hi

So just to close this out, I entered a guilty plea and stated my mitigating circumstances and reason for delayed response.

Fine was £123.00 and 6 points.

£49.00 donation to Victim Services.

Thanks for your feedback and advice.

Regards.

[dx100uk]

thank you.

 

dx

 

[Man in the middle]

That's a very good result! Did you pay prosecution costs as well (usually around £90)? If not, it was better than the fixed penalty(£200). Thanks for letting us know.