Wrongly accused of using mobile phone

[Willow75]

Hi, would it be at all possible to have some advise on the following:
My husband is recovering from a serious head and brain injury from 18 months ago and we bought a new IPhone with voice recognition as he struggles with his memory.
He was driving his vehicle and was seen, by 2 police officers in a marked car, placing his mobile phone on the dash board.
He was not making or receiving a call when he moved the handset, he had merely just moved it. He then used the voice recognition to make a call but the call did not connect as the other person did not answer the call.* The police officers pulled him over and proceeded to charge him with using a mobile phone whilst driving. My husband tried to explain to them that he had only moved the handset and he also explained his head and brain injury and that as a consequence he suffers with mental health issues but he says the officers were awfully rude to him.* We have since received a court notice as I had completed a not guilty plea on the prosecution form.* I was hoping that someone would be able to offer some advise on how we proceed. My husband would never use his mobile phone whilst driving, but did not realise that it is an offense to physically move the device. Many thanks in advance.*

[R0b]

All depends on what he is being charged with i.e. the actual wording, but if the charge is using a mobile phone see below.

You might be assisted by a recent court appeal which was successful where the driver was filming an accident and driving. I've provided an article to a summary of the case as well as the judgment. You would be wise to give the judgment a good read, it's one of the few short decisions around (11 pages) and in particular, reference to paragraphs 12 and 47 which discusses the argument around holding the device at some point to make or receive a call.

Ultimately, its up to the prosecution to prove their case, is there any video evidence of the alleged offence or is it just the word of the officers?

https://inews.co.uk/inews-lifestyle/...-ruling-497138

https://www.judiciary.uk/wp-content/...9-Judgment.pdf

[Willow75]

Rob, Thank you so much for your reply, I really appreciate your help.* It states on the form 'using a handheld device whilst driving' and it also states there is no video evidence so it is just the officers word.* I shall have a good thorough read through the links. I thought that they may have been a little more sympathetic due to my husbands health condition but it does not appear so. Many thanks once again.*

[luxardo]

I once got a dismissal in a similar case. There was no photographic evidence just the cop's word. ie I saw the driver with his hand to his ear holding an object. I asked the question "what colour was this object" with the inference that my phone case was a very bright colour and I would produce it in court and prove it to be a different colour to whatever the cop said.

[Guest]

I had similar, mobile rang, I had the phone on the dashboard (Van) picked it up to see who was calling, put it back on dash (I genuinely did not answer the call), policeman tucked behind bushes with a radar gun, his colleague stopped me just along the road, result Driver aware course, from memory fined as well, still annoyed over that as I know don't phone whilst driving, I have seen the end result. *

[Willow75]

Thank you so much for your replies, it is much appreciated.* The letter that he has received states it is a Summons on Referral to Court and the reason is: For a case management hearing (deft to attend). Should we think about taking a lawyer to this hearing or am I able to speak on behalf of my husband as he has cognitive problems due to his head injury. Many thanks*

[luxardo]

If you can afford it it's always worth taking professional lawyer with you

[lgfa92]

Thank you so much for your replies, it is much appreciated. The letter that he has received states it is a Summons on Referral to Court and the reason is: For a case management hearing (deft to attend). Should we think about taking a lawyer to this hearing or am I able to speak on behalf of my husband as he has cognitive problems due to his head injury. Many thanks

The court would have to specifically grant a right of audience for you to speak on his behalf , something that's not often done for various reasons - the court will strongly encourage you to be legally represented as it's best for all parties. Case management hearings can get technical if there's issues up for dispute.

[Willow75]

Thank you all once again for taking the time to reply.* The case hearing is a week tomorrow so I shall use my time tomorrow to hunt for a legal representative.*

[Willow75]

Good evening, could anybody recommend a solicitor within the Stoke-on-Trent area whom could represent my husband to defend this alleged motoring offence. Many thanks

[HandyAndy]

It is illegal to drive with a cell phone in your hand. This includes the ability to make and receive calls, as well as use other features of the phone

No it isn't. The police would have to prove either that you were using it for "interactive communication" (see the case of DPP vs Ramsey Barreto):


https://www.bailii.org/ew/cases/EWHC...2019/2044.html


If they couldn't do that no offence under the mobile phone legislation could be proved. They would have, instead to prove you were not in proper control of the vehicle and simply holding something in your hand would not normally support that.

[islandgirl]

I was in court in a similar case where someone moved the phone from the dash to a seat and was accused of answering a call. The prosecution failed. The OP needs legal advice.

[des8]

two year old thread

[islandgirl]

ah ok - I didn't resurrect it! Wonder what happened...

[HandyAndy]

It was me. It appeared at the top of the list and I didn't read the date!