Mobile Phones and Driving
Consultant,
Graham Walker advises on how to defend prosecutions involving
the use of mobile phones whilst driving.
“I recently appeared on behalf of a
client who was summonsed to appear at the Macclesfield Magistrates’ court
for using a mobile phone whilst driving his car." |
 |
The proceedings were brought under regulation
110(1) of the Road Vehicles (Construction and Use) Regulations 1986.
The offences were punishable under Section 41D of the Road Traffic
Act 1988. The offence carries an obligatory endorsement of three
penalty points and discretionary disqualification. The offence could
have been dealt with
by way of
a fixed penalty to avoid court appearance.
For the offences to be proved it must be established
that a mobile telephone was held at some point during the course
of making or receiving a call or performing any other “interactive
communication function” which includes the sending or receiving
of text messages, faxes or pictures and accessing the internet.
The expression ‘interactive
communication function” is not specifically defined so that
it will continue to embrace future technological changes.
In this case the police officer had seen my client with the mobile
telephone in his hand whilst driving also holding the steering
wheel with the same hand and had assumed he was making a telephone
call. I was able to prove at court by production of telephone logs,
that no call had been made or received nor any text or message
sent or received at the time my client was seen holding the telephone.
The offence was not committed unless the motorist
drives a motor vehicle on a road whilst using a hand held mobile
telephone.
It was accepted that it was insufficient for the
purposes of a successful prosection for my client to be simply
holding a telephone in his hand and that it was an essential element
of the offence that the prosecution satisfy the court beyond reasonable
doubt that the mobile phone was being used to make or receive a
call or message.
It should be noted that under Regulation 110 two other offences
can be committed – causing or permitting a person to drive
a motor vehicle on a road whilst using a hand held mobile telephone
or device; supervising a provisional licence holder where the driver
commits the offence.
there is statutory defence if one can show all of the following
three criteria are fulfilled:-
a). That the call is to an emergency service using 112 or 999 and,
b). That the caller is acting in response to a genuine emergency
and,
c). That it is unsafe or impractical to cease driving in order
to make the call.
While the regulations set out the specific offence of driving
whilst using a mobile phone, it is also the case that the use of
a mobile phone while driving can be an important constituent part
of other offences – causing death by dangerous driving, causing
death by careless driving and careless driving.
Although driving while using a hand-held mobile phone was made
illegal in Britain in 2003, Bluetooth technology and devices with
headphones and speakers are still legal. However, according to
the Department for Transport, hands-free phones can still be considered
a distraction and drivers risk legal action if they drive erratically
whilst using one.
It is imperative when advising clients in relation to these offences
that before any pleas are entered, careful examination is made
of the requisite logs that are available on almost all mobile phone
systems. I would anticipate that where a police officer is prepared
to give evidence to a court that the motorist is seen using the
phone with it held to his ear, then to defend such an allegation,
the defendant will have to produce independent evidence most usually
in the form of a phone log to support his case.
In this case my client had been seen by a police officer, whose
job it was on this occasion to stand at the side of the road and “spot” motorists
using their mobile phones. He telephoned his colleague, three to
four hundred yards further down the road, who flagged down my client
and issued a fixed penalty notice. It became clear in cross examination
that the officer who stopped my client failed:-
a.) To ascertain the number of the phone.
b.) To check the phone for information stored within the phone
as to received or recently made calls.
Further, after a not guilty plea had been entered, the prosecution
made no attempt to request sight of my client’s phone log.
The evidence they obtained at the scene of the alleged offence
was non-existent and it is clear that, as with speed cameras, most
of these cases will be dealt with by way of a quick guilty plea
and a fixed penalty fine.
Given however that three points are obligatory, it is important
that any motorist who genuinely believes that they were not using
their phone does not simply accept the fixed penalty and looks
to defend their case with the assistance of telephone log information.
If you require further information regarding this
article or any Road Traffic Act prosecution matter,
please contact Graham Walker at gwalker@nexussolicitors.co.uk.
Nexus Solicitors
Knutsford Office
2 Swinton Square
Knutsford
Cheshire WA16 6HH tel: 01565 632152
fax: 01565 632154
www.nexussolicitors.co.uk |
