If charged with using your mobile phone whilst driving contact us today for a
. We have found that in many areas of Scotland a common
"loophole" exists with the prosecution of these cases and in our legal opinion
it is fatal to the Crown case and can mean that we can win YOUR case.
More than 24,000 drivers were handed £60 fines across Scotland, according to
statistics published by STV News.
The figures show that 66 people are caught using their mobile phones whilst
driving every day in Scotland - one-third higher than last year.
The shocking figures come as no surprise to our firm due to the level of
increased enquiries that we have received in the same time.
Using a mobile phone whilst driving can range from inconsiderate use to
highly dangerous and the sentences that go with it are similarly wide ranging.
If prosecuted for causing death by careless or dangerous driving the possibility
of a jail sentence is real.
For most drivers the consequences will be a fixed penalty of 3pp and a £60
If this penalty is likely to take you near to a totting up ban then it may be
time to get in touch with us for some advice on how to proceed
We defend mobile phone prosecutions frequently and find that almost on a
daily basis we are contacted in connection with these cases.
expertise in mobile phone case prosecutions means that we can make a real
positive impact when it comes to defending you in such a case.
If you need to be defended on such a case just give us a call today for a fee
quote and a chat about your case.
People are usually surprised that we can win such cases, since the
evidence seems clearcut to them. However, we have had a good deal of
success on a technical ground that is now presently under appeal by the
Crown. If the Crown appeal fails, it will open the floodgates to
hundreds if not thousands of cases in the UK wherever the police have
failed to retain the mobile phone as an evidential production. The High
Court is never keen to open any "Floodgates" therefore we can safely
assume that there will be verycareful consideration
of the implications involved in this matter.
In these days of multi function devices a phone may be a GPS, a
Dictaphone,a Notebook or any number of things that could
not be described as "an interactive communication device" as defined by
the statute. It is my
opinion therefore that in many, if not most cases the police require to
seize the device to enable the Crown to establish that 1) That it is
a phone and 2) That it was being used as an interactive communication
A statutory defence exists where the accused can show he/she was in
the process of making an emergency call. Most members of the public are
not aware of that and most members of the public do not contact a
lawyer until the copy complaint or charge sheet is received from the
Procurator Fiscal's office. This is often several months after the
event and by this time there is every chance that the phone and the
phone records will no longer be available, therefore the accused is
left unable to establish with any degree of certainty that he/she was
engaged in such an emergency call. The defence do not require to prove
their position "beyond a reasonable doubt" but obviously a Magistrate
will want all the evidence that can possibly be brought to assist their
decision on guilt or innocence. Only a negative inference could be
drawn from not having the phone records available. Remember that an
"Emergency call" is not fully defined in the statute and has to be
considered therefore by the court depending upon the facts and
circumstances of each case. Since it is for the defence to establish
this defence my view is that there is an element of prejudice in simply
returning the phone to the accused and sending them on their way
without a word of warning about how important a piece of evidence this
item could be.
I am well aware that this would not make me very popular with the
thousands of people who could be inconvenienced by having telephones
removed from them and it may even lead to the reconsideration of how
the present fixed penalty scheme operates. At present the police
provide the accused with a fixed penalty notice (As long as their
points don't stack up to the dreaded 12 when disqualification requires
to be considered) they have 28 days to pay. If an instant fixed penalty
could be paid on the spot then the accused and telephone could be
allowed to go on their way. I can visualize police officers now riding
around the country with their credit card readers strapped to their
waist alongside the CS Gas cannisters and the truncheons.
Who knows what
the future holds, certainly I have several clients who presently
anxiously await the outcome of this Crown appeal A driver may call 999 or 112 in response to
a genuine emergency. Two-way radios are not covered by this offence but other
devices for sending or receiving data – such as Blackberrys for example - are
included if they are held while driving.
What is the law about
using mobile phones while driving?
It is illegal to drive a vehicle
or ride a motorbike and use a hand held mobile phone or similar device. It is
also illegal to supervise a learner and use a hand-held phone.
A hand held device is something that ‘is or must be held at some point during
the course of making or receiving a call or performing any other interactive
communication function’. Such as texting. A device ‘similar’ to a mobile phone
includes a device that can be used for sending or receiving spoken or written
messages, sending or receiving still or moving images or providing Internet
access. A recent English case ruled that using a Dictaphone whilst driving was
not an offence under this statute.
If you accept a roadside fixed penalty notice, you will receive three points
on your licence and a fine of £60. Taxi drivers and other drivers are entitled to use two-way
radio equipment when driving, this is not a specific offence. However, you need
to remember that a conversation could still distract and if the driving is
regarded by the police as careless or dangerous then charges could still result
in the loss of your driving licence.
can the police prove that I was using my hands-free or mobile?
police rely on their own testimony. They do not need video evidence of the
alleged offence. If you are seen holding the phone whilst driving the police
will suspect use. If they see you with the phone to your ear then the High Court
in Scotland has previously commented that a clear inference can of course be
made that you were using it. If it goes to court your phone records can be
checked to determine whether you were using your phone and what type of call was
being made. MSP Ted Brockelbank was found Not Guilty of using his mobile phone
when in his case the prosecution evidence was simply that he was looking down
When is a
driver allowed to use a hand-held phone?
Drivers are entitled to use
their mobile phones for "emergency use". That Emergency use is not fully defined
but one can expect it to mean wherever the driver feel a genuine reason exists
to call 999.
Driving is using a motor vehicle on public roads
and can include when a vehicle is stopped at traffic lights or during a traffic
hold-up. The definition of public road can throw up some interesting legal
points therefore if you have been charged as a result of a call from a car park
or the like you should take legal advice on how to proceed with your
What if I
use the phone for work?
Employers can be prosecuted under this piece
of legislation simply because they have existing work systems that encourage
employees to make calls when driving and they no adequate hands free system in
If charged with using your mobile phone whilst driving contact us today for a
. We have found that in
many areas of Scotland a common "loophole" exists with the prosecution of these
cases and in our legal opinion it is fatal to the Crown case and can mean that
we can win YOUR case.