Court Result – Cabbie Guilty – Lost His Green Badge? LG22YFN

Please do subscribe to the @BlackBeltBarrister here: https://www.youtube.com/@BlackBeltBarrister
The cabbie himself struck me as a kind and decent man, calm and well spoken. We chatted amicably after court and he understood why I do this, and gave me a hug as I wished him the best. He knows it isn’t personal, and that I’m trying to improve road safety.

Also I know the end bit is out of order – that’s because I filmed it with the idea of having that before BBB’s segment, but BBB’s segment is so good that it deserves to be near the beginning. Soz, and I’m too lazy to refilm the end bit.

You can report road crime online here in London: https://www.met.police.uk/ro/report/rti/rti-a/report-a-road-traffic-incident/
In the rest of the UK you can use the NextBase Portal to find your local force submission portal:
https://nextbase.co.uk/national-dash-cam-safety-portal/

=====================================================================
These are affiliate links – I earn a small amount of referral money if you click on these links and buy anything. It doesn’t cost you any more, and it helps to support my road safety work.

The GoPro Hero 12, the latest version – https://amzn.to/3FdeDdq
My current camera: GoPro Hero 11 Black – https://amzn.to/3gqURSn
The GoPro head strap v2 I mount the camera to: https://amzn.to/3rMi9s5
A good quality MicroSD card that is fast enough for this 4K camera: https://amzn.to/31qhf3G
A 2 pack of GoPro batteries and the external charger: https://amzn.to/45rNfDb
Spare GoPro Hero 12/11/10/9 batteries: https://amzn.to/3RP3NSp
(clone batteries are cheaper, but perhaps less reliable)

An excellent selfie stick and tripod: https://amzn.to/3Lpb2fB

I also use:
The latest Insta360 Go 3 micro camera https://amzn.to/3RSO04U
An Insta360 Go 2 microcamera: https://amzn.to/3e9Jz13
An Insta360 One R 360 degree camera: https://amzn.to/3eaMshX
Rode Wireless Go II Dual channel wireless microphones: https://amzn.to/3BphpYM

If you’d like to support me by buying me a ko-fi, here’s the link: https://ko-fi.com/cyclingmikey
=====================================================================

Yeah good evening everyone I’ve just come out of there again Lavender Hill magistrates Court this is a tough one um I think I got called in about 3:00 p.m. and the case went on and has just finished now about 6:00 yeah lots of complex arguments and

I think I’m going to have to digest it and look through my notes before I give you the full Ru write up but yeah lots of complex stuff going on very obstreperous uh solicitor for the defendants who didn’t seem to know what he was doing and three times seemed to

Search for the defendant’s name which I didn’t think was very professional anyway it’s only my opinion I’ll uh speak to camera again about this this one when I’ve uh thought about it some more C hello everyone first of all a huge thank you for having me on the

Channel my name is Daniel Shen Smith I’m a barister of England and Wales and I enjoy helping you to understand law over on my own channel on black belt barister so thank you to my mik for kindly inviting me to give you some commentary on this very interesting taxi case now

There’s a lot of interesting points brought up in this case for example the submission of no case to answer whether or not the exemption for making a contactless payment applies to taxi drivers um whether or not um the statement should have been passed across as in Mikey’s witness statement and

We’ll come to that as well a bit later and so let’s talk about uh the offense itself I will go through the video I’ll give you my commentary as I go through it and of course I’ll talk about the regulations so forgive me if you’ve um

Heard about that a lot already on this channel but I’ll just give you my brief overview on that as well uh so first of all the starting point with these regulations I feel it necessary to say that the law was amended quite significantly to make it very restrictive with the use of mobile

Phones or any other device that’s capable of interactive communication and this all started with a case of director of public prosecutions and bretto in that he was uh bretto this was was filming the Collision uh as he drove along in his car and this ultimately led to his conviction being quashed because

It wasn’t quite caught within the legislation as it then was that was then amended and regulation 110 now provides that virtually anything that you can do with a mobile phone is going to be in breach of that regulation um and this is the regulation you can see here so all

Of those things that you can see here checking the time Illuminating the screen checking notifications unlock the device I mean this one for me is quite Broad in that Illuminating the screen you can’t really do anything with the phone unless you’ve illuminated the screen and even by touching the screen

At least with mine it illuminates the screen so you can’t even touch it if it’s in your hand and so using a mobile phone to do any of these things which includes pretty much anything you can think of is going to be in breach of these regulations and it’s a very strict

And heavy penalty and so the question arises as to whether the contactless payment uh applies to this Taxi Driver case as we’ll come to in a moment but let’s watch the video first and I’ll give you my commentary as we go along through uh so move to the video here I’m

Not going to play all of the video you can watch um the rest of it in the rest of Mikey’s video but um this is my commentary as we go along here let’s watch it from this point here let me turn the volume down slightly so approaching from the near

Side rear and what I will do at some point is zoom in so we can see closer so you can you can see there the driver clearly has the phone in his hands you can clearly see there’s a passenger in the back and approaching the uh pillar of

The door here looking around and pausing there you can quite clearly see the driver has the phone in both hands resting it against the steering wheel and he’s not even touching the steering wheel one might argue that he’s not moving at this point but if we continue

Playing on the video whil he does eventually grab the steering wheel he started moving before touching the steering wheel now if we go back for a moment to around about this point here you can see that this is these are my observations uh evidentially this is

What I would do when I’m looking through a case to advise a client whether they are guilty of an offence or not there’s clearly a whole queue of traffic here and whil there is a foot path this passenger is clearly sitting in the back and not looking like he’s going anywhere

Looks quite fit up actually and at one point you’ll you’ll spot in a moment that he even checks his watch to almost to check check how long it’s going to take him to get through this traffic now that’s important because from an evidential point of view one of the

Arguments was that the driver was taking a payment and therefore um shouldn’t be guilty of this offense and it should come within this exemption which it doesn’t for reasons um I’ll come to in a moment and the bench didn’t accept anyway but the argument itself as to

Whether or not the passenger was making payment to get out what do you do when you’re a passenger well if you’re about to pay you’re getting your wallet out you’re leaning forward you’re talking to the driver um driver is usually talking with you all of that should happen when

The vehicle is stationary so at any argument whatsoever the vehicle should be pulled over to the side should be stationary and that interaction should happen there but if we watch this again there is no visible clue or suggestion that this passenger is anything like looking to get there he looks at his

Watch look uh there’s no suggestion that the passenger is ready to get out there’s no real communication at all between the driver and the passenger all you can see is the driver has the phone in his hands now if we look at the defense argument for a moment that this

Should have come within the contactless payment exemption let’s look at the wording for that exemption this provides that a person does not contravene a provision of this regulation if at the time of the alleged contravention that person is using the mobile telephone or other device to make a contactless

Payment for goods or services which is received at the same time or after the the contactless payment is made and the motor vehicle is stationary so in reverse order the driver here cannot possibly come within that exemption because a stationary vehicle should have the handbrake applied and ideally should

Be at the side of the road not in the middle of the road so was there’s a fairly flimsy argument that the vehicle is stationary that wouldn’t be accepted even if this exemption were to apply but what this exemption to the regulation really means is that if I’m making a

Contactless payment at least with mine with Apple pay trip the button on the side and make a payment with it and that is obviously for uh coffee or food at a drive-thru and they are provided at the same time or it might be for a car wash

For example and I’m driving through like a drive-thru car wash and make a payment like that any goods or services that are received at or just after the contactless payment is made now applying that to this situation if the driver were which I don’t think he was taking a

Payment from the passenger that is taking a payment not making a payment and so these regulations have to be read very strictly which we’ll come back to a bit later when we talk about the mental element the men’s Rare Element to the offense so in short even if the driver

Were taking a payment in my view this uh exemption does not apply the only way this argument would have worked at all for the driver is if the driver was at the side of the road parked up stationary handbrake on and actually taking a payment from the passenger now

All of this taken together that is not what is happening here in my view now it’s also interesting to note that there is a significant distance uh between this vehicle and the vehicles in front now this suggests to me two possible things one either that the driver is not

Paying full attention to the road and has left this sort of Gap in front which is not ideal because it’s a queue of traffic it’s only going to extend the overall traffic queue uh or secondly either consciously or subconsciously the driver knows that it’s not really safe

To be close to the vehicle in front whilst using the phone and therefore again he either consciously or subconsciously leaving a gap because he’s using his phone now either way you can clearly see he’s using a phone for whatever purpose that might have been now as to the men’s Rare Element that

Being the mental element this was one argument um fairly forcefully put across by the defense according to Mikey’s notes here um there is no mental intention element required for this offense this is a strict offense I.E if you do this thing you are guilty of the

Offense but if you contrast that for a moment with the offense of theft by way of example there are five elements to theft it must be the dishonest appropriation of property belonging to another with the intention to permanently deprive that person of it now there’s more than one element that

Has a mental element to it the dishonest part dishonesty has a subjective mental intention element to it and the the fifth one the intention to deprive whereas if we contrast that with this uh regulation here it is strictly worded no person shall drive a motor vehicle on a

Road if he is using a handheld mobile telephone or other device now so if he’s doing that thing then you’re guilty of the offense regardless of any intention whatsoever it’s a little bit like the possession of ilicit substances if you have it on your possession you’re guilty

Of possession that’s the way the law works now as to the argument of no case to answer all cases whether they are civil or criminal are made up of two halves either the prosecution and defense or the claim and defense uh two halves to the trial and the reason for

That taking a criminal prosecution by way of example the prosecution presents the prosecution case and then close the prosecution case and then the defense bring their case now in between is what we call the halfway point now the submission of no case to answer is often referred to as a halftime submission

Because making the application at the end of the the prosecution case a submission of no case to answer suggests that given all the evidence that’s been provided the bench or a jury should not be able to properly convict on that evidence take for example if witness

Evidence is weak and the term is a fleeting glance taken from the case of Turnbull so this application for witness evidence is often referred to as a turnball submission I.E it is weak evidence that should not be left to a jury now a submission of no case to

Answer might be made in that case in that it would be unsafe to leave that evidence to a jury because it’s unreliable evidence in this case with all respect to the defense it was highly unlikely that a submission of no case to answer was ever going to succeed but

Also it’s sometimes only made as a potential point of appeal in that if the application is refused that might be one point upon which they could appeal a conviction in that the ruling should have been that there was no case to answer but obviously in this case that

Didn’t happen and sometimes if we want to look for a little bit more guidance as to how to interpret these regulations or any other piece of legislation there are often explanatory notes they are not part of the legislation itself they are just guidance as to how the court is to

Interpret these regulations or legislation and to which they will have Regard in this case it very specifically says that these regulations were amended to widen the scope of the offense to include any use of a mobile phone or interactive Communication in the hand whilst driving and that they remove the

Requirement that the drivers using the mobile telephone or other device to perform interactive communication function if you remember the case of DPP and beretto that was a very narrow exception in that they argued that the interactive communication was not happening at that point and as the legislation was then drafted meant there

Was a very neat little loop hole through which this case escaped however now it’s been amended so that regardless of whether whether these interactive communication functions are active or not if you are using the device even for Illuminating the screen then you’re in breach of those regulations but as I say

The only way this taxi dri would have been okay to take the payment by any means of the use of the phone would be if it was pulled over stationary parked up handbrake on and definitively unquestionably stopped for the purposes of letting the passenger out and taking

The payment but in this case in my view he was in the middle of the road he was still driving in so far as the court be concerned so even if he were taking a payment that still wouldn’t apply here but as I say I don’t think he was taking

A payment there’s no suggestion from looking at it that the passenger was ready to get out or there was any communication between the passenger and the driver via V the payment it looks very much more like the driver was reading something or going through messages or something like that so

Either way this exemption does not apply in this case because it’s for making a contactless payment rather than taking a payment and even if it did the vehicle would have to be stationary and stationary is not met by sitting in the middle of the road it should be pulled

Over with the handbrake on or in the case of a drive-thru in going through a drive-thru with the handbrake on as to the suggestion that the driver was startled by being filmed that is never going to wash because the driver should be alert and aware at all times as to

The argument that Mikey was shouting at the driver I heard no such thing during the video as to the argument regarding the witness statement clearly the defense wanted to use Mikey’s witness statement to poke holes in it for the purposes of cross-examination because if there’s any inconsistency or if there’s any

Discrepancy that defense could use within that statement to cross-examine Mikey that might have undermined the prosecution case however this being a criminal case where evidence is ordinarily heard orally and only if statements are agreed then the statements remain in written form and they are read out for the court as

Opposed to giving live evidence in court but in this case with the prosecution evidence being heard orally by Mikey giving his evidence in court it is then the opportunity for defense Advocates to cross-examine those prosecution witnesses rather than pick apart the written witness statement this contrasts the situation with a civil claim where

The primary evidence is instead of being oral evidence is in writing that is because of the difference in the burden and standard of proof Witnesses are trusted to leave their primary evidence to their written witness statement that will then with the judges permission stand in evidence in Chief and they will

Then be cross-examined on that witness statement but that is not the case in criminal cases evidence is ordinarily heard orally and finally there’s no surprise of course that the court was unwilling to provide any commentary regarding the committee meeting with Transport for London as to whether or

Not the driver would lose the green badge the court is simply not going to make such comments so I hope you found that overview interesting there’s thousands more videos on my channel if you do wish to watch those but thank you once again to Mikey for having me on the

Channel and with that I thank you for your kind attention bye for now why is it say 11 minutes I won really take we should you be having a clearly lit up phone screen there my friend yeah you can drop it blue charge cable at 716 lg22 yfn with a 3D number plate

21159 come on fell you got to do better you know your driver was on his phone right sorry no he’s just on the phone so I’ll be reporting him to the police but if I were a taxi passenger I’d be getting out with someone driving on the

Phone now he’s just on the phone so I’ll be reporting him to the police but if I were a taxi passenger getting outly someone driving on the fr yeah good morning everyone so yeah this is about the taxi driver case um that you’re about to see and it was a very

Interesting case it took ages like 2 and a half hours something like that no maybe three so anyway essentially I filmed this Taxi Driver across there in uh West Carriage Drive in hide Park and his defense was initially that there was no case to answer and that’s because he

Said he was taking a fair and was stationary um anyway just before this I had had my um gave my evidence on the stand and was cross-examined really quite bullish bullishly and powerfully by the defense solicitor anyway the magistrates um saw that the the taxi was

Moving on the video taking a fair isn’t allowed except when completely stationary and really um it should be in a kind of a drive-through situation so um the defense claimed the case was poorly presented was very pushy and towards the court and the prosecutor the prosecutor had to stand up really strongly against

Him um anyway so the magistrates went out and decided that yes there was in fact a case to answer so the trial progressed okay so then the defendant took the stand he been a a li a London licensed taxi driver for 18 months meaning he has a green badge he took a

Passenger from exhibition road to bayw and that when I called him the taxi driver wanted to get out and pay um he gave a mobile phone statement showing that he hadn’t made any personal calls from 2:30 till 7:00 in the evening I think I caught him just after 5:00 I can’t

Remember and the driver showed his payment machine which is one of those little portable devices and said that he’d put the amount on the Machine by using his phone and that he was allowed to do that because he was make he was taking a payment so my view on this thinking to

Myself was that why didn’t the driver Park up and take the the payment then he could have done so quite legally and they were into two parking spaces right where I caught him two I thought the exemption of using your phone win stationary was for making contactless payments not for taking them

But maybe that’s not well defined in law I don’t know I’m not a lawyer I’ll leave that one to the black belt Barrister who’s offered to make some commentary on this video um yeah then there was some argument about my statement how the defense wanted to use my statement and the prosecutor refused

Basically because the defense had already had a chance to cross-examine me and I hadn’t left the court um when I was released from the stand I went and sat in the witness Gallery so I’d been observing all the proceedings and that precludes you from from giving further rate of evidence I

Believe there’s a big argument about that and then the defense and the taxi driver claimed that I was being that I startled him and that he began to drive off simply because I spoke to him now I think if you watch the video that’s not the case he it although it was very

Close together he’d already started driving off before he noticed me and before he’d have any chance to react on either the brakes or the accelerator apparently in the in the defenses um summing up I’m culpable for what the taxi driver did and that I’m a professional complaining witness and an

Officious an overly officious Citizen and um he’s arguing about men’s Ry meaning that the taxi driver had to have intended to drive forwards and that he didn’t have that because I’d given him a fright and then pretty much the whole Court the legal adviser and the the the

Prosecutor turned around and said this is a strict liability offense there’s no need for any men’s rare meaning no need for his mental intention to drive forwards and it wasn’t relevant to the case so quite interesting really so so the Crux of the matter was that the taxi

Driver thought wanted to say that he wasn’t um he wasn’t guilty of a mobile phone driving offense because he was taking a payment and that he wasn’t moving but I think the video evidence shows otherwise and you’re going to see the full video like from before what I

Submitted to the court where you see a WhatsApp Gap twice which tells me he has been using the phone for a long time I mean we don’t know that but it seems likely right and then um the fact that the passenger didn’t get out when I was

Talking to the taxi driver or for a minute 20 afterwards as you’ll see on my rear camera footage so the magistrates went away they made a big um they took some time to decide this and they came back and basically they said he was guilty the defense then ask as argued

For no endorsements and for special special reasons for no endorsements because it was such a small amount of driving forwards and purportedly presented no risk to others the magistrates went away decided on that and came back and said they would not accept special measures because of the large amount of traffic

Because of the pedestrians um lots of pedestrians around and because it was in a park so yeah sadly he lost out the the taxi driver had three points already for speeding in 2022 and Three Points before that also I think for speeding in 2019 but those had

Expired so he was in no danger of losing his license he was given a fine of £220 the full cost of £620 and a s charge of £88 and was allowed to pay it back monthly at1 a month which I think is very fair I’m completely fine with that

The solicit solicitor then asked if the bench would be willing to make any comments um about this case to the tfl licensing committee who would be due to be seeing this Taxi Driver as to whether he’d be allowed to keep his green badge um and the court said they were not in a

Position to to do that and it was not something they could offer so pretty interesting huh I thought I’d had enough evidence when I saw the taxi driver simply using it or not when he stationary so that means maybe I should have kept on filming for a bit longer before saying

Anything I really did not anticipate that this defense would come forwards so yeah in light of this I’d like to pass you over to Daniel Shen Smith my friend the black belt barister he’s a really cool guy and you should subscribe to his channel if you haven’t

Already um he talks about lots of interesting stuff well outside of just driving law and he’s going to comment on the legal side thanks very much bye