KNOW YOUR RIGHTS
Advice: The law is clear that in order to find you guilty, the police must prove that you were both holding a phone and using it. In this case, holding the phone is obvious. The question is whether you were using it. The court must be convinced that you were using the phone for any reason at all, including illuminating the screen.
But we need to get moving quickly. The laws of evidence and the procedure of criminal proceedings is strict. For example if they have sent you their witness statements, you only have seven days to reject them. If you haven’t rejected them, they will be agreed at the trial, meaning you cannot challenge them. Likewise if you want to rely on any evidence you have to provide that to the prosecution before the trial, otherwise they will accuse you of ambushing them and the court may refuse to allow you to rely on it.
Outcome: Before trial we got a copy of the witness statements of the police officers, a copy of the footage from the stop and all various forms. We rejected the relevant parts, agreed other parts, served what we needed to serve. We call this ‘legal housekeeping’. We then scrutinised everything we had received to get a better understanding of the case.
Once we obtained the body worn footage, it became clear that the officer’s account at the roadside differed significantly from what he later wrote in his witness statement. At the roadside he stated that he had only seen the driver holding the phone but not using it, whereas in his statement he claimed he had seen him holding and using it. We put that inconsistency to the officer in court, and he couldn’t explain it. That inconsistency was enough for the court to conclude that they could not be sure he had been using the phone, which is a vital element of the offence. He was found not guilty.
Case 3
Question: I’ve had a letter from the police with a photograph from one of these new AI cameras. It shows me holding my phone and my thumb is touching the screen. I wasn’t actually using it, but I don’t know what to do. Is that enough to convict me?
PHTM OCTOBER 2026
If your thumb is touching the screen, that would probably be enough evidence for the court to conclude that you were using it, but it is not guaranteed. It will depend on whether you can persuade the court that there was a legitimate reason for holding the phone and that touching the screen did not amount to using it. If the court does not believe that explanation, you would be found guilty.
Taking it to court is therefore a gamble. If you lose, the points remain at six, but the fines and costs will be significantly higher than the fixed penalty. If you win, you receive no points and no fines. You need to consider the risks carefully before deciding.
Outcome: In this case, the driver decided to accept the fixed penalty. The photograph was clear, and although he maintained that he was not using the phone, the position of his thumb on the screen would have made it very difficult to persuade a court otherwise. Accepting the fixed penalty avoided the risk of much higher financial penalties.
Had the photograph simply showed him holding it but not touching the screen, that probably wouldn’t have been enough to convict him for driving whilst using a phone, because there would have been no evidence of ‘using’. Although in this circumstance the police could, and often do, charge with the lesser offence of ‘driving whilst not in proper control’, which carries three points and £100 fine.
The same is often said for the opposite – in cases where the photograph shows the phone in a cradle and the driver touching the screen, but not holding the device. Here, again there would not be enough evidence to convict somebody of driving whilst using a ‘handheld’ mobile phone, so instead the police often argue that somebody cannot be in full control of the vehicle if their focus is not on the road but instead is on the phone, so charge with the lesser offence.
If you need any advice on motoring matters, then please email us at:
advice@pattersonlaw.co.uk or call 01626 359800 for free legal advice.
69
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76
