Use of Hand Held Mobile Phone while driving a motoring vehicle on a road !

[dinkydonk]

Hi,

My wife was photographed using her mobile phone while stationary in traffic at traffic lights. No question she is guilty of the offence.

She already has 6 points on her licence and I'm wondering if someone can advise me on what to write in the 'Mitigating Circumstances' section ?

There are no mitigating circumstances for her using her phone whilst on the road, but we would like to potentially avoid her being banned or losing her licence.


1) She would likely lose her job. She works with underprivileged and disadvantaged kids.

2) It would seriously impact on my work as I'd be solely responsible for taking our two kids to school and picking them up. I run my own business and my commute is 45 mins in each direction. I would have to drop the kids at 08.40 and collect them at either 15.15 or put them in after school club daily which we cannot afford.

3) My father has stage 4 brain cancer and my wife assists with looking after him Monday / Tuesday and weekends

4) My mother has advanced dementia, she went into a home at the weekend but my wife would visit once a week.

5) Our 9 year old son has an allergic eye disease and has regular hospital appointments

6) Kids play football and gymnastics after school on a weekly basis and this would need to stop.

It would have severe implications for our family.

My wife has received two fixed speed penalty points in her entire driving career, they just happen to have occurred in the past 2 years to give her the 6 points she has currently with the punishment to come from this offence.

She googled a solicitor today who wanted to charge £1500 to handle it all for her and told her there were loads of mitigating circumstances, but I'm not sure and he sounded like a shark.

Any advice would be much appreciated !

[islandgirl]

To not be banned you need to show exceptional hardship. https://www.noblesolicitors.co.uk/ab...-hardship.html
Loss of job and looking after a family member (as a sole carer - not assisting) are possible reasons - the rest not really in my view (and I sit all the time on these)
You would need to bring a letter proving she would lose her job and prove the sole caring responsibility. We would not just believe what someone says.
Running the kids around? Get a taxi. Or you have to do it. Visiting mum? The same. Hospital appointments? Same again. School clubs - no mitigation at all.
Even with good mitigation nothing is certain.
It is meant to be extremely difficult to be without a licence. There is a chance you could avoid a ban but in my view a small one, sorry. Getting a solicitor would be a good idea but shop around - and ask for proof of previous success.

[Manxman]

My understanding is that if facing a "totting up ban" you (or rather your wife) can make a plea that a ban would result in exceptional hardship.

Note the use of the word "exceptional".

She losing her job would probably not be exceptional. For many people losing their job is an ordinary consequence of getting a ban - not an exceptional one.

Having said that, I believe that a court might look more favourably on a claim of exceptional hardship if that hardship would be suffered by a third party. So you could argue about the impact on caring for your mother and father if your wife were banned.

You might try also to argue about the impact on your children of a ban (getting to and from school, getting to football and gymnastics etc) but a court might easily decide that this was not "exceptional" hardship because many banned drivers would face the same problems. Be prepared for the court to ask your wife questions about alternative arrangements. (eg taxis and public transport. Remember that not all young families have access to a car to transport their children around at all...)

She might have better luck arguing about your son's hospital appointments. But again - would that be exeptional? How do mother's without cars get their children to hospital appointments?

Your wife should also be prepared for the court to be ask why - if her licence was so important to her - did she risk losing it by using her 'phone in the car? (I don't want to be gratuitously rude, but my own view is that anybody who uses a phone at any time at all in a car while they are in the driving seat and engine is turned on must be daft. They're asking for trouble).

I'd suggest your wife puts her own case** together. By all means pay for a solicitor to help if she (or you) want to, but a solicitor can't guarantee success and you might be better saving £1500 to go towards buses and taxis...


** By all means put forward all of the points you mention in your original post, but you and your wife need to remember that she needs to emphasise that a ban will cause exceptional hardship to her and others because of her caring duties as a daughter in law and transporting your children

[Edit: Google "exceptional hardship driving ban" or similar for more info. And read the bottom half of this page: 3. ‘Totting up’ disqualification – Sentencing (sentencingcouncil.org.uk) ]

[R0b]

Just so we are all clear on the offence, your wife had the phone in her hand, it wasn't set in a cradle or anything like that?

[dinkydonk]

Just so we are all clear on the offence, your wife had the phone in her hand, it wasn't set in a cradle or anything like that?

Unfortunately a pedestrian took a photo of her with the phone in her hand !

[wales01man]

Bang to rights i think take the penalty fine ban whatever and dont do it again . I still wonder why people need to hold/use phone whilst driving.

Sorry to be so blunt but there have been cases where drivers with phones in their hands have killed others

[dinkydonk]

Does anyone have a recommendation for a solicitor ? We have about a week to reply !

A solicitor my wife found in Google suggested £1500 for doing this, is that about right ?

[dinkydonk]

Bang to rights i think take the penalty fine ban whatever and dont do it again . I still wonder why people need to hold/use phone whilst driving.

Sorry to be so blunt but there have been cases where drivers with phones in their hands have killed others

I understand. But she was stationary in a significant traffic jam and has never used her phone while moving.

But point taken.

[atticus]

All solicitors can be found on google. Check them out, look for reviews, recommendations etc.

[islandgirl]

I understand. But she was stationary in a significant traffic jam and has never used her phone while moving.

But point taken.

Stationary is still an offence of course.
£1500 does not sound "out of the ball park" but as above shop around. Your wife could do it herself if she is confident to speak in court, She would need to bring proof of EVERYTHING she is claiming would be hardship and explain the effect on her and others. If she would lose her job, why? Working with kids is not driving an HGV - why does she need a car to do it? You would have to explain. Given what you have written I would not find exceptional hardship but you may have a bench which is more sympathetic!

[HandyAndy]

Does anyone have a recommendation for a solicitor ? We have about a week to reply !

She doesn't need a solicitor. She can save the money to put towards her fines etc.

There are some schools of thought (to which I subscribe) that, provided she is reasonably lucid, an EH plea would best come from her personally. She can draft her argument and if she does not fancy speaking in court, ask the Bench to read it themselves. She will, however, still be required to give evidence under oath, which will include questioning from the Magistrates and possibly the prosecutor. Here's the guidance used by Magistrates when considering an EH plea:

"When considering whether there are grounds to reduce or avoid a totting up disqualification the court should have regard to the following:

It is for the offender to prove to the civil standard of proof that such grounds exist. Other than very exceptionally, this will require evidence from the offender, and where such evidence is given, it must be sworn.

Where it is asserted that hardship would be caused, the court must be satisfied that it is not merely inconvenience, or hardship, but exceptional hardship for which the court must have evidence;

Almost every disqualification entails hardship for the person disqualified and their immediate family. This is part of the deterrent objective of the provisions combined with the preventative effect of the order not to drive.

If a motorist continues to offend after becoming aware of the risk to their licence of further penalty points, the court can take this circumstance into account.

Courts should be cautious before accepting assertions of exceptional hardship without evidence that alternatives (including alternative means of transport) for avoiding exceptional hardship are not viable;

Loss of employment will be an inevitable consequence of a driving ban for many people. Evidence that loss of employment would follow from disqualification is not in itself sufficient to demonstrate exceptional hardship; whether or not it does will depend on the circumstances of the offender and the consequences of that loss of employment on the offender and/or others."

[HandyAndy]

One of the key points to take is that in order to succeed, the problems caused cannot be merely inconvenience, but must amount to hardship that is over and above that which most people would endure if they were banned. It is also important to address why any alternatives to driving that might be available are either impossible or impractical. These are topics which the Magistrates will (or certainly should) explore and your wife should be prepared for them.

On the face of it, the circumstances you describe (which I appreciate are in outline only) do not appear particularly strong:

Item 1: Needs expansion. What will be the effect on the children she works with? Will somebody else be recruited and be able to provide the same care?

Item 2: Can be summarised as "inconvenience."

Item 3: Can anybody else do it? Is alternative transport available?

Item 4: Alternative transport, or perhaps you drive her?

Item 5: Ditto.

Item 6: Inconvenience (admittedly for them, not her, but scarcely "hardship").

No need to answer any of my remarks. I'm just giving you an idea of how the Magistrates will view these topics.

I would say that, properly padded out, her argument stands some chance of success but is by no means guaranteed. Whilst any one of these topics by itself would almost certainly not succeed, the cumulative effect of all of them could be seen as exceptional.

She googled a solicitor today who wanted to charge £1500 to handle it all for her and told her there were loads of mitigating circumstances,

To steal a quote from the late Mandy Rice-Davies, "Well he would say that, wouldn't he?" :-) You must ask yourself whether £1,500 for a half hour in his office and a morning or afternoon in court is good value.

[islandgirl]

So Handyandy and I are on exactly the same page about this. The way I said we mags would treat it is exactly the same as described above, Re Item 1 - as I said above why does she need a car to do the work? If it is just getting to work then this would not be considered. We hear from drivers in person and via solicitors. More often than not they run the exceptional hardship argument themselves. The reasons will fly or they will not, no matter who presents them and, as I have said, I do not think these would prevent a ban in my court.

[dinkydonk]

Thanks everyone, the advice and time taking into giving it is greatly appreciated !

We have received a court summons and a date of 18th January !

The exceptional hardship is that both my parents are seriously unwell. My father has stage 4 brain cancer and my mother has advanced dementia. Since September last year I have been out of the office caring for my parents at least 2 days a week and unable to travel.

My company has been loss making since COVID except this year when we finally returned to profit. My wife doesn't work Mondays and Tuesdays so the plan for her was to take care of my parents for both those days enabling me to travel to visit clients, who are mainly in London, (we are in Yorkshire) and fulfil my responsibilities effectively.

We have livelihoods who rely on the ability for me to be at work and deliver and we also plan to hire a new employee in the office that is directly linked to my role of sales director. If my wife loses her licence we will not hire this person, my business will be significantly effected and I will be unable to fulfil my role effectively at the company next year.

Where we live, there are no trains, there is one bus that rarely turns up and a journey time of 45 mins from our home to my parents would 2hrs 30 in each direction.

Walk - Bus - Train - Train - Walk

We live in the countryside so UBER's are rarely available and 4 x 45 min taxi trips per week is cost prohibitive, if they would ever actually how up, which they rarely do.

This can all be proven and presented.

[des8]

Exceptional hardship ..... you run your own business and if you employ staff will the ban impact your employees (lay off or short time working etc)?