'Using' a mobile phone while driving - what does it mean and can I defend a prosecution?
The law in this area is complex. The police often don't know it properly.
The Law - using a handheld device.
Prior to 2017 using a mobile phone while driving was an offence that could have resulted in 3 points on your licence. The maximum penalty was doubled in 2017 to 6 penalty points and a fine of up to £1000 (£2500 for busses and lorries).
Currently, to be guilty of using a mobile phone while driving, the driver must physically hold the mobile phone in his or her hand, be in control of the vehicle, and using the device for 'interactive communication'. This is a reasonably well-defined set of activities that include the following:
Make a phone call
Receive a phone call
Send a text message
Send an e-mail
Access social media sites
Access streaming services
In 2020 the government concluded a review of the offence and now seek to introduce much stricter legislation to cover all interactions with a handheld device and not just those which appear to fall under the umbrella of 'communication'. By the end of 2021 it might well be that the following activities are also prohibited - this is not an exhaustive list:
Illuminate the screen
Unlock the device
Check the time
Reject a call
Access streaming services
Take photos or videos
Use the phone’s camera
Search for music stored on the phone
Dictate voice messages into the phone
Read a book on the phone
Play a game on the phone
PLEASE NOTE - AS AT 2021 SEPTEMBER THE ABOVE CHANGES HAVE NOT TAKEN PLACE.
What actually happens in court under the current legislation?
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 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.
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.
The defend may need to provide sworn evidence from mobile phone providers who will have to provide the phone records for the number in question (this is not the same as a phone bill), 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.
If the proposed changes to the legislation come into force this year then the issues faced by a defendant appear to be be much more narrow but, as with any law, the real test will be when cases are tried in court. Be sure to check back in for updates.
The ban imposed for this offence is the same as the 12 months minimum for drink driving, but magistrates will normally look to give a ban of 18-24 months unless there is a good reason not to.
All drunk in charge solicitors will tell you that a conviction for drunk in charge can result in a ban or in extreme cases prison. Our experience is that a large number of these prosecutions can be successfully defended.
Special Reasons is a principle which provides that with certain driving offences, even if someone is technically guilty of an offence, the court may still not impose a ban, even for an offence like drink driving, where a ban is usually mandatory.
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