At 1.59pm on the 6/03/x I called my wife on my car hands free kit whilst leaving the car park, my wife did not answer my phone log shows this call at 1.59pm the call lasted 10 seconds.
At 2.02pm on the 06/03/x I was sat in a queue at the main roundabout by Asda. My phone fell out of my pocket on the floor in the foot area I was alerted to this as my hands free car phone kit which has a lcd display attached to the dashboard made a beeping noise with a error message saying connection failed, I automatically reached down to pick the phone up as I thought it was dangerous being on floor where it could interfere with my control of the vehicle and picked it up.
I automatically glanced at the phone whilst in my hand for several seconds, I suppose to check the phone and I do appreciate I should have not but it was an instinctive reaction. I then noticed a police motorcycle was at side of me and he requested me to lower my window, the officer asked me to pull over at the next traffic lights.
I did so and pulled in to a car park. The officer immediately told me he was cautioning me and informed that anything I said could be used as evidence in a court.
He then informed me that I was going to be cautioned for using a mobile phone whilst driving, I explained that I had not been using the phone and would he like to check my phone as the call log would clearly show no calls had been dialled or received.
I also confirmed I did have a hands free in my vehicle and explained I would not make a call on my phone whilst driving unless using the hands free kit, however the phones call log would confirm the phone had not been used when the officer had seen the phone in my hand, I would also confirmed that the phone was never near my ear, I did confirm this with the officer he agreed, however I did understand it should not have been in my hand.
The officer declined to check my phone, I asked him again, and he still declined. I tried to explain why the phone was in my hand, the officer was not interested and did not allow me to explain, he reiterated the phone should not have been in my hand and I could pay a fix fine of £60 and receive 3 points on my licence, or I could do some research and check my rights and either come in to W-S-M police station within the next 7 days and except the fixed penalty or go to court.
I did ask the officer what was the definition of using a mobile whilst driving, as I believed I clearly was not using the mobile phone, he was not very specific with his response as if he was unsure.
What do the prosecution have to prove?
The prosecution have to prove beyond reasonable doubt that you were actually using the phone and not just holding it. “Use” includes using the phone for any of its functions, not just making or receiving a call. However many police officers erroneously believe it to be an offence to be holding the phone.
The way the law is written makes it clear that this is not the case. However if you are “holding the phone” next to your ear the court may well come to the opinion that you were indeed “using” the phone and will convict you. As with all criminal cases (and motoring offences are criminal cases) the police have to prove their case to the court “beyond reasonable doubt”.
I have also checked the fixed penalty notice given to me by the officer and noticed 2 things that concern me, the first being the time of the incident is shown as 2.00pm, I can reassure you it was in fact 2.02pm this may not seem significant but in view that the time could indicate if a phone was in use it would in my opinion be of great importance it was correct, however my phone clearly shows 1.59pm for 10 seconds and this call was made using hands free, the second point is at no was I offered the opportunity to check and sign the fixed penalty.
The burden is on the officer to prove his allegation against you beyond reasonable doubt.
You have to cast a doubt to be found not guilty. You have a strong defence to this matter for a number of reasons. Using a phone – means just that. It has to be in your hand as you are using it for phone of its phone functions e.g. making or receiving a call or a text. You were not therefore using a hand held phone whilst driving.
Officers have a duty to look for evidence that points both towards an offence and away from an offence. His failure to examine your phone when offered will not help his case against you. I also assume that you are a man of good character. This means that the court must give extra weight to what you have to say. This will help you to cast a doubt.
You seem to have really good prospects of success on the face of it. I defend over 96% of the cases that I take on. You have to reject the ticket and ask for a court hearing.
I could try and persuade the police not to take it further at this stage if you would like me to try. They should only issue a summons if they have a reasonable prospect of convicting you.