Points for using phone

sheramber

Why were you holding it while negotiating a roundabout just because the holder was broken? You have repeatedly avoided explaining that.

That could prevent you from being in full control of the car.

If not using it then it could have been in one of many other safer places.

Ibrahim5

Right. I think we have exhausted discussing this particular offence. It's time now for any other criminals wishing to avoid prosecution to post details of their offences.

TooManyPoints

You shouldn’t be quite so dismissive.

It’s an interesting topic because the offence is not made out if all the court is satisfied of is that the driver was holding the phone. That isn’t enough. They have to be satisfied, beyond reasonable doubt, that the phone was being “used.”

The legislation gives a list of about a dozen activities which are considered to be “using” the phone. That list is not exhaustive, but all of the activities involve something more than merely holding it. So I would suggest that the court has to be satisfied that the defendant is doing something more than merely holding it to be convicted.

In the absence of any evidence of use (such as the police witnessing the defendant talking into it, a record of calls, texts or e-mails) the court must make some assumptions about what was being done with the phone. What they assume (and hence whether they convict or acquit) will depend on what they hear from both the prosecution and the defendant.

I strongly suspect that the OP would be convicted based on what he's told us. But it’s a worthy point to discuss because it is not an offence (at least, not under the mobile phone legislation) to hold a mobile phone whilst driving. But it certainly adds to the suspicion that it was being used.

Herzlos

Wouldn't an argument that they were merely holding it, over some time and at least round one roundabout, lead to something like an "not being in proper control of a vehicle" offence? I don't think there'd be any double-jeapordy type regulation that'd prevent another offence being prosecuted?

We're also missing the bit about why the police noticed, did they just happen to see it at random or was the OP driving in a way that drew their attention?

TooManyPoints

Wouldn't an argument that they were merely holding it, over some time and at least round one roundabout, lead to something like an "not being in proper control of a vehicle" offence? 

Possibly. But as I emphasised, my remarks only refer to a specific mobile phone offence.

Ectophile

https://forums.moneysavingexpert.com/discussion/comment/82046743#Comment_82046743

But there is a time limit to serve a NIP for a motoring offence, and that time limit will have expired.

Aretnap

But there is a time limit to serve a NIP for a motoring offence, and that time limit will have expired.

No NIP is required for a not in proper control offence, nor for a mobile phone offence for that matter.

That said:

(1) A court can't simply decide to convict of careless driving or not in proper control if the prosecution can't prove the mobile offence. Except where two offences are charged as alternatives (not usually the case) or are statutory alternatives (not relevant here) they can only convict you of the actual offense that you have been charged with.

(2) On you being aquitted of the mobile phone office the prosecution could in theory issue new charges and bring you back for a new court date on different charges. But at best this would be a lot of administrative work for a fairly minor offence, and at worst it would be impossible if six months had passed since the date of the original incident (at which the statue of limitations kicks in). And

(3) Simply holding something in your hand is not a slam dunk conviction for not being in proper control of the vehicle etc. IIRC the mobile phone offence was originally introduced specifically because prosecutors were quite often unable to get convictions for not in proper control, let alone careless driving.

rocketrob5

The argument over using or holding should be irrelevant. If holding is ok, and using is not, it opens the floodgates for anyone using their phone to claim they were only holding it. Back to basics, do not touch your phone when driving. If it or anything else falls on the floor, stop somewhere safe to retrieve it.

Mildly_Miffed

So let's assume there was indeed zero "using" of the phone going on during the roundabout/dual-carriageway driving in question.

In which case, the question remains…

WHY HOLD IT AT ALL?
If the holder was broken, why can't the phone just stay in a pocket or door pocket or on the seat?

It can't, of course, be a question of it being quickly to hand for when use was required, because that use would require it to be held, and that would be illegal in a way that the OP appears quite adamant they would never consider…

Can we all agree that a phone which isn't being actively used is indistinguishable from any other similar sized inanimate object? In which case, who would insist on firmly cuddling their purse or wallet or a glasses case or <insert whatever> while driving…?

sheramber

The OP has avoided answering why he was holding it,

Was he holding it to his ear?

Was he holding it so that he could read it?

Was he holding it in his lapso that….?

It must have been in such a position that the police could see it in his hand.