[the little onion]

So here’s an odd one. Just posting it here for any advice, though as a CyclingUK member, I’ll also contact them to hear their view.

 

I was close passed in a really bad way a while back – basically, nearly squeezed between a barrier and a badly driven car. During the process, I “dropped the f-bomb” four times. I submitted the footage to the police, including an apologetic note for my language in the footage. The police are taking it further with the driver, apparently, but the driver has now complained that I was using foul and abusive language, and thus a public order offence. I’m now going to be interviewed under caution for a public order offence!

 

I’ve sent some footage to the police before which has included some fruity language, but never had anything like this before. Frankly, the whole thing is embarrasing that this has been taken this far. Surely there is no public interest in pursuing someone who lets their language standards dropped when narrowly escaping a serious road incident?

 

Any thoughts or advice welcome.

Topic

[Arjimlad]

Easy for me to say don’t give

Easy for me to say don’t give in, let them see how far they get with that.  But in other cycling cases, they’ve been dropped before trial b/c a prosecutor gets hold of the file & can back down if they think it is not a winner. 

[Arjimlad]

That’s very disappointing.

That’s very disappointing. Sometimes the fear/shock of a nasty close pass remains in the system for hours afterwards, it’s wholly understandable you would utter a few expletives at the driver especially if that’s how he addressed you afterwards too. I’ve sworn during a reported close pass & never been upbraided about it! 

[Rendel Harris]

Firstly it’s pretty desirable

Firstly it’s pretty desirable to leave the sound in if at all possible, not only so the police can hear how genuinely shocked the victim was by the incident but also to give them extra evidence in terms of engine noise et cetera that might help them judge proximity; secondly, in an early response on this thread TLO said “The second two F-bombs came less than 5 seconds later when the driver wound down the window to call me a “f-ing danger”, and which I pointed out where the real “f-ing danger” was” so the driver definitely heard the language in question.

[Hirsute]

Aside from that being 20/20

Aside from that being 20/20 hindsight, you’d had to have made a policy decision to disable the camera mic. If it goes to court, you’ll have to supply the original which will have sound. Whether the police could demand the original before then as part of their investigation, I don’t know.

[bikeman01]

Dont know why you didnt just

Dont know why you didnt just send in a muted video if it was only your language that was incriminating. Did the or anyone else even hear you swearing or did he just get that from viewing the evidence?

We all know that the police are now very sensitive… bless em.

[Backladder]

HoarseMann wrote:

“section 5 requires no proof of any intention, nor that any person actually be caused harassment, alarm or distress, only that the act took place within the hearing or sight of a person “likely” to be caused harassment, alarm or distress.“

Since the driver used similar language it in not “likely” that he was caused harrasment alarm or distress by having it returned to him. (IANAL)

[wtjs]

What this boils down to is

What this boils down to is the police trying to frighten people they don’t like, cyclists reporting offences with good evidence, off – all to the benefit of people they do like, who are hard-working motorists who are otherwise law-abiding who accidentally committed a trivial offence where the cyclist wasn’t even KSI’d.

[HoarseMann]

Ah yep, section 4 is a bit

Ah yep, section 4 is a bit more serious. That can result in a prison sentence and I think has to involve the CPS. I suspect this would be a section 5, as it can be a police led prosecution and there’s no custodial penalty, just a fine:

Factors tending to indicate that a charge under section 4A is appropriate would include:

Sustained abuse
Targeting a lone victim
Significant effect on victim

Factors tending to indicate that a charge under section 5 is sufficient would include:

Single remark
Victim is not alone/isolated
Effect is minor/transitory

[Hirsute]

I was looking at S4.
I was looking at S4.
But the word ‘likely’ does require a degree of proof not just a claim.
How likely was it that the driver was distressed?
That’s why you need a lawyer present.

[HoarseMann]

Yes, you’d have to be aware

Yes, you’d have to be aware that a swear word may be abusive. But I should think that test is passed easily in this case.

[Laz]

life and death in naziland-

life and death in naziland- is this what your grandfathers fought for ? (mine were on the other side- damn them)

[quiff]

Strictly speaking that blog

Strictly speaking that blog is correct to say they do not need to prove intention but it looks like they do need to prove either intent or awareness:

s.6(4) POA 1986: A person is guilty of an offence under section 5 only if he intends his words or behaviour, or the writing, sign or other visible representation, to be threatening [F1or abusive], or is aware that it may be threatening [F1or abusive] or (as the case may be) he intends his behaviour to be or is aware that it may be disorderly.

But I think it’s right that only a likelihood of alarm is required, not actual alarm.  

   

[HoarseMann]

anotherflat wrote:

Be very wary of accepting a caution, it does go on your record and can have serious career limiting issues depending on what you do.
Get legal advice

This is true.

The risks of going to court need to be balanced with the consequences of accepting the caution.

Many years ago a friend of mine accepted a caution for urinating up a back alley at 3am whilst a bit tipsy. He ended up having to disclose the caution when applying for a government job. Thankfully it didn’t hold him back, but everyone’s circumstances are different.

[HoarseMann]

Hirsute wrote:

Hirsute wrote:

However, it is important to remember that proving the defendant’s intent is not enough. There must also be evidence of somebody (which need not be the person targeted) suffering actual harassment, alarm or distress as a result.

From what I have read, this is not the case. Intent seems to be irrelevant and there’s no need to prove actual alarm/distress occurred…

“section 5 requires no proof of any intention, nor that any person actually be caused harassment, alarm or distress, only that the act took place within the hearing or sight of a person “likely” to be caused harassment, alarm or distress.“

[quiff]

I think that relates to a

I think that relates to a different offence under s.4A – causing intentional distress. It’s quoted from here: https://www.cps.gov.uk/legal-guidance/public-order-offences-incorporating-charging-standard#:~:text=This%20can%20usually%20be%20proved,or%20distress%20as%20a%20result.

However, I’m an interested amateur and this speculation probably isn’t helping the OP! Get a qualified solicitor if it goes to court!

[Author]

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