Driving while using mobile phone, Edinburgh, 2 June 2017, Not Guilty
This case called for trial on the 2nd of June 2017 at Edinburgh Justice of the Peace Court. It sticks in the memory for having some of the worst police evidence we have ever heard at a trial.
We had been precluded from carrying out our usual investigations due to a dearth of information from the police and therefore had to attend court without the benefit of an idea of the police officers’ view. The statements were also vague as to what exactly our client was doing other than “using” his phone. Our client’s position is that his phone was plugged into his dashboard and sat on his centre console with the satnav running – so the screen of the phone was lit.
The law, as per section 41D(b) of the Road Traffic Act 1988 requires a phone to be “used” and case law has determined that merely looking at a phone or even holding a phone is insufficient as regards using a mobile phone while driving. Therefore what our client was doing was perfectly legal so long as he was not actually interacting with the device and not allowing it to distract him from driving.
The police evidence was extraordinary. The first officer said he “saw” the phone in our client’s left hand and the screen was lit. He drew the inference from the lit screen that the phone must have been being used. We had anticipated this and lodged a phone as a production with a setting which enabled the screen to remain lit. We held up the phone to the officer and asked him what it was. He relied “a mobile phone”. Next question was whether the screen was lit and the answer was “yes”. The final question was “am I using it?” and the answer was of course “no”. The passage of evidence could be criticised as a bit of a stunt; however it did the job.
The second officer conceded he did not even see a phone, only a light “which must have been a phone”.
Unsurprisingly the Crown did not proceed with the prosecution after that!
This case was prepared and defended by Steven Farmer