Summary
A video of our client was submitted to the Police which shows our client’s phone to be lighting up while driving. He was later charged with using a handheld device while driving. Partner Massimo Trebar represented our client on a privately funded basis, where he made strong representations to the Prosecutor on the day of the Trial, arguing that the evidence against our client was weak, indicating that if the trial did go ahead, he would make submissions that there was no case to answer. After considering these representations, the Prosecution offered no evidence and the case was dismissed.
Details of the Incident
Our client is a courier driver and covers very high mileage in the course of his job. The video submitted by the witness shows our client driving his vehicle and his phone screen momentarily lighting up. The witness also claimed that our client was driving ‘all over the road’.
It was the Prosecution case that the footage indicated that our client was, momentarily, holding the phone, and therefore committing the offence.
However, our client stated that the phone is always in a cradle. He maintained that he only ever uses his phone for SATNAV purposes and never uses his phone for messaging, phone calls or social media while driving.
Our Defence
Massimo analysed the footage very thoroughly and prepared a robust defence ahead of the Trial hearing. He provided a commentary on the footage, frame by frame, asserting that it did not show the phone being operated outside of a cradle or held by our client’s hand or that the driving was ‘all over the road’ at all.
If convicted, our client was at risk of receiving a fine as well as six points on his license, which would have resulted in him losing his job. Our client was supporting his young family, as well as his elderly mother, all of whom would be negatively affected by our client’s loss of employment.
Court
Our client’s trial hearing was due to be heard at Luton Magistrates Court. Massimo made strong representations to the Prosecutor on the Morning of the Trial date, that the footage against our client was insufficient evidence to prove the Prosecution’s case, and that he had prepared to make a half-time submission that there was no case to answer, if the Prosecutor still wanted to go ahead with a Trial. Massimo had researched and referenced the relevant case law to support this application and made these representations to the Prosecutor. Massimo had reviewed the key case of R v Galbraith, which sets out the test in situations of “weak” prosecution evidence as follows:
‘The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.’
Massimo also researched a further case which supported the defence position – of R v Goddard & Fallick (2012) and was able to rely on this case to submit that for a case to go beyond half time a jury properly directed must be able to reject all realistic possibilities consistent with innocence. He submitted that in this case, the defence position that the phone was in its holster was a realistic possibility and which the footage could not rule out. Therefore, the Court ought to decide that there would be no case to answer.
Furthermore, Massimo had to make sure that the Prosecution could not alter the charge to the secondary offence under S41 D(a), which does not require proof of the device being handheld, but simply that the person was
“driving a motor vehicle in a position which does not give proper control or a full view of the road and traffic ahead.”
Massimo was able to determine that the Prosecution would be out of time to substitute a new charge for this offence. Moreover, it was considered that footage could not support a contention that our client did not have full view of the road and traffic ahead.
Outcome
After making these representations to the Prosecutor, the Prosecutor indicated he was persuaded not to proceed with the Trial. Once in Court, the Prosecutor formally offered no evidence against our client and the case was dismissed. This was the best possible outcome for our client, as a dismissal means that the Prosecution could not re-open the case. Furthermore, the District Judge ordered a Defence Costs Order to be granted so that a portion of our client’s defence costs could be reimbursed from Central funds.
Our client was extremely relieved with this outcome and grateful to Massimo for his diligence and support throughout his case. Thanks to the strength of Massimo’s representations, our client avoided any points on his license and therefore, any impact on his employment.
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