Alleged using mobile phone & late NIP

Aretnap

kilby_007 wrote: »

Hmm. So what's the difference between pressing a button on my mobile phone and pressing a button on my radio? I never talk or text on my mobile and I certainly never do it when the vehicle is moving!

The difference is that parliament made it illegal to use a mobile phone while driving. It didn't make it illegal to use a radio while driving. You might argue that the two are equally dangerous, and you might be right, but you also have to deal with what the law actually says, not what you think it ought to say.

The actual offence is "using" the phone, not making a phone call. The regulations don't define "using", so the court would apply the normal meaning of the word. IMO picking up a phone to check who's called you is using it under any reasonable definition of the word, especially if you have to press buttons to get that information.

Of course, that's just my opinion. Jimmy Carr did famously get off because he was using his iPhone as a dictaphone rather than to make a call, but that may have been more to do with Nick Freeman playing a Jedi mind trick on the judge than the correct interpretation of the law. And as it was only in a magistrates court it didn't set a precedent, so another court would be free to come to the opposite conclusion in the same circumstances.

kilby_007

Aretnap wrote: »

The difference is that parliament made it illegal to use a mobile phone while driving. It didn't make it illegal to use a radio while driving. You might argue that the two are equally dangerous, and you might be right, but you also have to deal with what the law actually says, not what you think it ought to say.

The actual offence is "using" the phone, not making a phone call. The regulations don't define "using", so the court would apply the normal meaning of the word. IMO picking up a phone to check who's called you is using it under any reasonable definition of the word, especially if you have to press buttons to get that information.

Of course, that's just my opinion. Jimmy Carr did famously get off because he was using his iPhone as a dictaphone rather than to make a call, but that may have been more to do with Nick Freeman playing a Jedi mind trick on the judge than the correct interpretation of the law. And as it was only in a magistrates court it didn't set a precedent, so another court would be free to come to the opposite conclusion in the same circumstances.

What then is the definition of "driving" - does that encompass sitting at a traffic light or railroad crossing with engine out of gear and handbrake on?

Aretnap

kilby_007 wrote: »

Do you think it will be £60/3points? It says on the bottom of the NIP "Driver may be eligible to attend a 'What's Driving Us' Scheme subject to meeting the necessary criteria". I already have 3 points and my insurance is due for renewal in a couple of weeks so could do without them!!

What's driving us seems to be a new scheme similar to speed awareness courses, but aimed at things like mobile phone use or low end careless driving. I'm not sure exactly what criteria are used, but generally for these courses it's a case of (1) not having done one in the last 3 years and (2) the offence not being too serious in the grand scheme of things (I imagine yours wasn't). So you may well be offered the course. If not, it would be 3 points and £60. Contesting the charge in court would mean risking a bigger fine, but no more points.

Aretnap

kilby_007 wrote: »

What then is the definition of "driving" - does that encompass sitting at a traffic light or railroad crossing with engine out of gear and handbrake on?

That's another thing which doesn;t have a precise definition. Traditionally the courts took the view that it involved controlling the movement of the vehicle (there have been cases of people being convicted of driving offences while being towed, or pushing a broken down car), but a few years ago the High Court decided that it's not essential that the car be moving. The case was this one and involved drink-driving, but the comments might well be relevant to mobile phone use as well.

Reliance is placed upon the fact that there was no movement of the vehicle at the material time. I do not consider that Lord Widgery was seeking in his definition to limit the situations in which a person can be driving to those when the vehicle is actually moving. A driver who stops his vehicle at traffic lights is clearly, in my judgment, still driving that vehicle. It is a question of fact and degree as to whether the cessation of movement has been for so long and in such circumstances that it cannot reasonably be said that the person in the driving seat is driving.

daveyjp

kilby_007 wrote: »

What then is the definition of "driving" - does that encompass sitting at a traffic light or railroad crossing with engine out of gear and handbrake on?

Whenever the engine is running the car is being driven, whether it is in motion or not.

Aretnap

daveyjp wrote: »

Whenever the engine is running the car is being driven, whether it is in motion or not.

Your authority for that is...?

kilby_007

Thanks for your input Aretnap - very helpful.

Skintski

How can you get an NIP for using a phone? I've never heard of that before. Is that possible to get caught by a camera and know nothing until the NIP comes through? Surely you have to be pulled by a copper at the time.

Aretnap

Why would you have to be stopped by a copper? If you were caught on CCTV punching someone or picking someone's pocket would you be immune from prosecution because you weren't stopped at the time? Why would driving while using a mobile phone be any different?

There's a widespread misconception that motoring offences are somehow governed by a completely different set of laws to other offences. Actually apart from a few oddities (eg the requirement that you be warned about prosecution within 14 days for some specific offences) they're treated by the law in the same way as any other (minor) crime.

Skintski

I was thinking more along the lines of how many of our roadside cameras are actually good enough to pick that kind of thing up especially if the OP thinks he may only have picked up his phone rather than been holding it to his ear.