Question about mobile phone use while driving, The rules seem ambiguous... Options

[TheManinBlack]

I use my mobile phone as a sat nav whilst driving (I think a lot of people do).

I have it mounted in a cradle on the windscreen and it does not obstruct my view of the road.

A couple days ago, whilst driving, I touched the phone while it was cradled - and the police appear to have managed to take a photo of me doing this - and have sent me a 'notice of prosecution' letter through the door (together with the photo). The offence is for 'use of a mobile device while driving'.

From my reading of the law, I am actually allowed to touch the phone if it is cradled - is this correct?

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[Steve_999]

IMO already decided. If satnav is receiving real time data from a sat, it is a telecommunications device. The only question, was it hand-held at time of alleged incident?

I understood the definition to specify "interactive communication", i.e. sending as well as receiving.

[djtaylor]

Out of curiosity then, is a phone without a SIM card a telecommunications device if it's not receiving data any more than a gun isa murder weapon, just not all the time?

There comes a point where the whole intent of the legislation is missed and the argument degrades into semantics and pedantry purely for the sake of legal face saving.

But owning a gun is subject to certain restrictions using a phone illegally requires use, if you cant use it illegally then there is no offence, poor example.

Whether it's a poor example or not, feel free to answer the actual question!

Replace gun with knife if you prefer but that part of the sentence is really of no relevance to the actual question that I asked.

The whole purpose of the legislation is to deal with the mischief of driving with one hand is it not? The police always maintained that they didn't need this legislation because being distracted and thus driving without due care and consideration is already covered. Thus basically it's about arguing over what specific electronics are inside a device than what the actual effect of the offence leads to.

I could hold a toy phone to my ear all day long and have a conversation with myself and yet NOT be prosecuted under this specific bit of legislation and if I were in such a photo as the one in this thread, even with it to my ear, the onus would still be on the prosecution to prove that it's an interactive communications device and not a piece of vacuum formed injection moulded toy.

If it has no SIM, it's not an interactive communications device or is it considered that it is but cannot do so? I'm genuinely interested in the opinion of those with much greater experience here.

[southpaw82]

If it has no SIM, it's not an interactive communications device or is it considered that it is but cannot do so? I'm genuinely interested in the opinion of those with much greater experience here.

Well, feel free to start your own thread in the flame pit then.

[TheManinBlack]

47 in a 30 should qualify for a 3 points £100 fixed penalty. But it will be interesting what they offer.

Thanks - but are we sure about this - the solicitor I spoke to now (although I have not hired him yet) said that it is 4-6 points for this level of speed?

47 in a 30 should qualify for a 3 points £100 fixed penalty. But it will be interesting what they offer.

The thing is they will not offer fixed penalties for two endorsable offences, so unless the mobile phone offence is dropped it, the case will have to go to court.

They have informed me that they will not offer fixed penalties for the two endorseable penalties, as you say, and that the case is definitely going to court. I should await summons soon, apparently.

The issue is that the CPS guidance states that the phone should've "held" for it to be an offence. Whether it needs to be held independently of any other support is debatable.

However, if you argue the toss with the police they will often just send it to court. And although the CPS guidance is to some extent partial, magistrates court can be a bit of a lottery and you would potentially need to appeal it to crown court.

As has been said it depends on what comes through. However, I would be surprised if the police drop the phone charge, although there's no harm writing a polite letter asking them to exercise discretion.

You guessed right, they are not dropping the case and are taking it to court

I stand to be corrected but as there are multiple offences there will only be one lot of points, so 6 max?

That sounds promising - do we have source for this? Is this enshrined in case law?

I will definitely be going to court - but if I can leave court with just a 6 penalty (i.e. avoid disqualification), then at this stage, I would say I would be happy!

I stand to be corrected but as there are multiple offences there will only be one lot of points, so 6 max?

Correct, handheld mobile phone use would be 6 points and speeding 5 or 6 points, as the offences are on the same occasion 6 points should result. If the police are persuaded to drop the mobile phone offence, on the basis that their photo shows no offence being committed, there would only be one endorsable offence, so they could issue two fixed penalties, for speeding and no seat belt, which would be the best result.

Thanks very much for the advise. Again, just wondering if you perhaps have a source on this - just so I can read up more about this - thank you!

[southpaw82]

I stand to be corrected but as there are multiple offences there will only be one lot of points, so 6 max?

That sounds promising - do we have source for this? Is this enshrined in case law?

No, statute: s 28(4) of the Road Traffic Offenders Act 1988:

Where a person is convicted (whether on the same occasion or not) of two or more offences committed on the same occasion and involving obligatory endorsement, the total number of penalty points to be attributed to them is the number or highest number that would be attributed on a conviction of one of them (so that if the convictions are on different occasions the number of penalty points to be attributed to the offences on the later occasion or occasions shall be restricted accordingly).

[Jlc]

47 in a 30 should qualify for a 3 points £100 fixed penalty. But it will be interesting what they offer.

Thanks - but are we sure about this - the solicitor I spoke to now (although I have not hired him yet) said that it is 4-6 points for this level of speed?

On it's own then it would normally see a fixed penalty offer. But circumstances different here.

As the potential phone offence is 6 points, then if both offences were convicted then a maximum of 6 would apply anyway as above. But on the basis that the phone offence 'failed' then one could ask the bench to consider a fixed penalty equivalent for the speeding. (Otherwise it would be in the 4-6 points range, but realistically 5 or 6)

This post has been edited by Jlc: Tue, 5 Jun 2018 - 15:05

[TheManinBlack]

47 in a 30 should qualify for a 3 points £100 fixed penalty. But it will be interesting what they offer.

Thanks - but are we sure about this - the solicitor I spoke to now (although I have not hired him yet) said that it is 4-6 points for this level of speed?

On it's own then it would normally see a fixed penalty offer. But circumstances different here.

As the potential phone offence is 6 points, then if both offences were convicted then a maximum of 6 would apply anyway as above. But on the basis that the phone offence 'failed' then one could ask the bench to consider a fixed penalty equivalent for the speeding. (Otherwise it would be in the 4-6 points range, but realistically 5 or 6)

Thank you - that sounds reassuring. I am tempted to just plead guilty to all 3 offences on the basis I would like avoid a court hearing and just get a max of 6 points anyway.

I just spoke with another solicitor (again, I didn't hire him, just got initial advice) - but he said that the 3 charges are 3 separate offences and the prosecution can push for a full 12 points to be dished out (6 points for mobile phone and 6 points for speeding) and the court has the discretion to apply such sentencing if it sees fit and disqualify me. Is that right?? His advice would seem to contradict s28(4) Road Traffic Offenders Act 1988...

[Logician]

I just spoke with another solicitor (again, I didn't hire him, just got initial advice) - but he said that the 3 charges are 3 separate offences and the prosecution can push for a full 12 points to be dished out (6 points for mobile phone and 6 points for speeding) and the court has the discretion to apply such sentencing if it sees fit and disqualify me. Is that right?? His advice would seem to contradict s28(4) Road Traffic Offenders Act 1988...

Have a look at s.28(5), the court does indeed have such discretion but it is very rarely exercised, I fact I was once talking to a very experienced court legal advisor who was quite unaware of it! It is vanishingly unlikely to apply in your case, was the solicitor by any chance suggesting that with his knowledge and expertise he might be able to avoid such a dreadful outcome for you?

[Redivi]

It may only be six points but you would still have to disclose the multiple convictions to your insurance company

Speeding offences only have a trivial effect on your premium
Mobile phone use is regarded much more seriously

Pleading guilty when the prosecution's own photograph shows the phone in its holder makes no sense

[Churchmouse]

It may only be six points but you would still have to disclose the multiple convictions to your insurance company

Speeding offences only have a trivial effect on your premium
Mobile phone use is regarded much more seriously

Pleading guilty when the prosecution's own photograph shows the phone in its holder makes no sense

On the other hand, I can picture the "official" triumphalist tweet and accompanying sanctimonious screed already...

--Churchmouse

[TheManinBlack]

Hi All
Got an interesting update for everyone.

By way of reminder - I was accused of a) speeding excessively b) using a mobile phone c) not wearing a seatbelt.

As there were 3 charges - I was told that the case would definitely be referred to court.

As to the seatbelt offence, I was offered a seatbelt safety course, which I undertook, in lieu of fine.

The charge documents come through last week, lo and behold, all 3 charges are mentioned on there (i.e. including the not wearing a seatbelt offence).

Does this sound right? I thought I should not be charged with this since I already completed the seatbelt course...?

[The Rookie]

Its not right, although the course isn't enshrined in law it would be a breach of the commitment made by the Police not to prosecute, I'd start with a polite bemused call to whoever you were dealing with before asking why its included.

If you don't get a decent response a formal (polite) letter to the Chief Constable will help, or worse case you can probably get it resolved on the day with a polite conversation with the prosecutor.

A relevant read for you is 'H' http://www.bailii.org/ew/cases/EWHC/Admin/2008/506.html Noting Para 16.

[Redivi]

How much did the Seatbelt Course cost ?

Doesn't seem much point when the offence doesn't carry any points

[cp8759]

How much did the Seatbelt Course cost ?

Doesn't seem much point when the offence doesn't carry any points

AFAIK it's something like £36 for the online course so still way cheaper than a fixed penalty.

[Redivi]

In that case it makes sense

[TheManinBlack]

Its not right, although the course isn't enshrined in law it would be a breach of the commitment made by the Police not to prosecute, I'd start with a polite bemused call to whoever you were dealing with before asking why its included.

If you don't get a decent response a formal (polite) letter to the Chief Constable will help, or worse case you can probably get it resolved on the day with a polite conversation with the prosecutor.

A relevant read for you is 'H' http://www.bailii.org/ew/cases/EWHC/Admin/2008/506.html Noting Para 16.

I just spoke with the police, as you suggested.

They have no record of me completing the course. I am going to email them now with evidence.

As I say, I have been charged with all 3 offences.

For various reasons I won't bore you with - I cannot really attend a court hearing. I know that generally if you mark yourself as not guilty for a particular charge - you will be asked to go to court. Is that right? I want to plead not guilty to this charge...but don't want to end up going to court.

[cp8759]

If you send them the evidence regarding the course I'd expect them to drop the seat belt charge. If you plan on pleading guilty to the other two offences there's no need for you to attend, nowadays I think you can even plead guilty online.

[The Rookie]

You don't HAVE to attend court, but if you plead not guilty and no-one attends (you or a legal representative) its pretty much impossible in most cases to be acquitted (obvious really) so you may as well have plead guilty in the first place.

[TheManinBlack]

If you send them the evidence regarding the course I'd expect them to drop the seat belt charge. If you plan on pleading guilty to the other two offences there's no need for you to attend, nowadays I think you can even plead guilty online.

I have a letter confirming attendance to the course.

I also have repeated written corresponence from the Police saying that a Conditional Offer of Fixed Penalty wouldn't be offered as 3 offences took place. Yet in reality they will only be able to charge me on 2 offences...do you think I any leg to stand on re: due process / admin error?

[peterguk]

do you think I any leg to stand on re: due process / admin error?

In what respect? CoFP AFAIK can't be offered where there is more than 1 offence, not 2.

There might have been an admin error re. the seatbelt charge, but there's no silver dollar there.

This post has been edited by peterguk: Tue, 27 Nov 2018 - 16:17