Mobile Phones and
defend prosecutions involving the use
of mobile phones whilst driving."
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
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
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
Further, after a not guilty
plea had been entered, the prosecution made
no attempt to request sight of my client’s
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
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 email@example.com.
2 Swinton Square
Cheshire WA16 6HH tel: 01565 632152
fax: 01565 632154