Caught on the phone while driving, or simply falsely accused?

A person apparently caught on the phone while driving may face the stigma of a prosecution and the possibility of a conviction affecting their insurance policy. There has been massive publicity in recent years over the use of mobile phones in vehicles. With little evidence presented to the public and government first, parliament has outlawed their use while driving.

A young woman holding a smartphone while being behind a wheel

But exactly what does ‘use' of a mobile phone mean? And can the police be challenged? Should the motorist just accept the 3 points and possibly an increased insurance premium or is there a way of fighting the charge?

At Mary Monson Solicitors, we believe our record in fighting hand held device and mobile phone prosecutions in unrivalled. The law in this area is complex. The police often don't know it properly, but we do. Please see below for our basic explanation of how the law in this area works in theory and practice, and a case study where we have recently successfully fought for our clients. Mistakes are often made, and often only by expert cross examination in court can this be uncovered.

Our motoring solicitors' case studies

Any motoring lawyer can claim to have expertise in different types of motoring case. We have included here some case studies to give some idea of how we prepare our cases.

Case Study

Our client was the owner of a large taxi firm. He had never received points in 30 years of driving. Police officers said he had been on his mobile phone while driving. This was not true. On our advice, he rejected the fixed penalty offered.

We communicated directly with the client's mobile service provider to obtain all information on the activity on the mobile account during the period of the car journey in question. We obtained a witness summons for these documents, and then cross-examined the officer in court about exactly what he saw our client do. We were able to show the court that, irrespective of whether the phone was being held, there was evidence it was not being used. Result: Not guilty All client's legal fees reimbursed by the court.

Mobile phone offences The Law

Using a hand held mobile telephone whilst driving is an offence. The law is contained in the Road Vehicles , the Road Traffic Act 1988  and  the Road Traffic Offenders Act 1988. The maximum penalty is 3 penalty points and a fine of up to £1000.

To be guilty of the above offence, the driver must physically hold the mobile phone in his or her hand, be driving the vehicle and be using the mobile phone.

What actually happens in court?

So what is ‘using a mobile phone' as far as the law is concerned? For the prosecution to prove the offence, they must persuade the court that the defendant was sending or receiving texts or other messages or making or receiving calls. Essentially, the driver must have been using the phone as a communication or transmitting device to be guilty. Police officers will often exaggerate or mistake what they have seen resulting in witness statements that look damaging to a client to make it appear as if the person was caught on the phone while driving, and actually using the phone.

Simply holding a phone is not using it in the eyes of the law. But police will often describe the way in which the phone was being held, whether the display was lit, and how the driver was acting to try to show that he or she was ‘using' the phone. This may be enough for the court to come to the conclusion that the phone was being used unless the law is effectively put by a defence lawyer.

The police often do not know what the offence actually entails, and as with many motoring offences, the magistrates' legal adviser or district judge can be hazy on this specific area. This means that if the accused person does not have defence evidence properly prepared in advance, and the right representative to get the message across, then the chances of the prosecution being allowed to steamroll their way to a conviction can be high.

Defence Strategy

The defend may need to provide sworn evidence from mobile phone providers, auto-electrical engineers, or third party witnesses in the required format for the evidence to be admissible. When this preparation is done by an aggressive and experienced defence team, the case will often be dropped by the prosecution before it even gets to court.

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