KNOW YOUR RIGHTS
Q. Are there any exemptions? Yes. There are defences outlined in law:
1) Emergency. If you are using the phone to call 999 in response to a genuine emergency, AND it’s unsafe/ impracticable for you to stop.
2) Payments. If you are making a contactless payment for goods received at the same time payment is made (not ordering something online) AND the vehicle is stationary.
3) Remote controlled parking. If you are using an app specifically for remote controlled parking in particular circumstances.
WHAT IF I’M PROSECUTED?
If you weren’t stopped by police (for example you were filmed by a cyclist) the police will firstly need to write to the registered keeper to find out who was driving. This is called a ‘request for driver information’ under s.172 Road Traffic Act 1988 and it legally requires a response.
Failure to nominate the driver could see you prosecuted for failing to give information, which carries 6 points and up to a £1,000 fine. However, nominating the driver is not an admission of guilt. You can accept being the driver yet still defend the allegation against you.
Of course, if you were stopped by the police they’ll identify you at the roadside and they won’t send you a request for information.
You’ll then receive a conditional offer of a fixed penalty, offering you the opportunity to accept six points and a £200 fine instead of going to court. It is up to you whether to accept or not.
If you have less than six points and you accept, you will get the points, pay the fine and that will be the end of it. If you’re a ‘new driver’ (meaning the offence was committed within two years of passing your driving test) your licence will be revoked, resulting in you having to retake both parts of your driving test.
But if you have six or more points on your licence already, you’ll be at risk of a six-month ban for
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‘totting’ 12 points within three years, so the case will proceed to court to consider the six-month ban.
The second option is to reject the offer. If you reject, the matter will proceed to court. After a few months you’ll receive court papers called a Single Justice Procedure Notice which will ask you to enter a plea online or by post.
If you plead not guilty, the case will be listed for a trial at the Magistrates’ Court. Before the trial you would have to identify what the defence is (for example you weren’t driving, you weren’t holding it, you were dialling 999) what witnesses are required and what evidence you are relying on, amongst other things. You would need to attend the trial.
If you are found not guilty after a trial, then you receive no points or fines. But if you’re found guilty, the court would impose six points, a fine depending on your weekly income and prosecution costs.
We always strongly encourage defendants going to trial to instruct a lawyer to help cross-examine any witnesses, identify the defences and prepare for trial.
WHAT CAN I DO TO STAY LEGAL?
Firstly, never have a phone in your hand at all. Try to put it away completely, but if you do need it out, keep it in a cradle at all times. If it falls out, pull over, put the handbrake up, switch the engine off and put it back before you pull off again.
When it’s in a cradle, try to refrain from interacting with it. But again, if you need to use it, only do so whilst it’s in a cradle and always make sure it never distracts you or causes a drop in the standard of driving. Preferably, only ever interact whilst stationary.
And finally if you are ever prosecuted, seek legal advice. As you can see, this is a very complex area of law with many points to consider.
So please email:
advice@pattersonlaw.co.uk or call 01626 359800 for free legal advice.
JULY 2024 PHTM
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