PCN for mobile phone while driving

[mbbelius]

Hi all,

Appreciate any guidence on this.

I'm helping my sister in law defend a PCN - 6 points and £200 fine and intend to represent her at court.

Her situation was the she was driving down an A road and traffic came to a standstill. She had been stationary for around 10 mins and her engine was switched off.

In the opposite direction a large load with a boat on it came towards her, she picked up her phone to take a picture for her young son whose obessed with boats. A policeman who was travelling with the large load saw her and shouted, as he drove past, to put the phone down which she immediately did.

All of the above has been put in our defence, mainly being the engine was switched off and therefore not driving. We now have a court date for June 2025.

A few questions is possible:

When should we receive the information from the CPS that they intend to submit as evidence? We have seen nothing yet other than the PCN

I believe it's correct but even if found guilty then it would still be 6 points and £200 fine. Are there any additional court costs if I represent her?

Your thoughts on the case and chance of success.

Many thanks

[HandyAndy]

When should we receive the information from the CPS that they intend to submit as evidence? We have seen nothing yet other than the PCN

She almost certainly has not got a PCN. She will have been sent a “Conditional Offer of a Fixed Penalty”. They are completely different. However, it doesn't matter as it seems things have moved on .

You have not explained but, since she has a court date, did she received a “Single Justice Procedure Notice” and entered a not guilty plea in response? If so, she should have been served the evidence the police intend to rely on to convict her.

I believe it's correct but even if found guilty then it would still be 6 points and £200 fine. Are there any additional court costs if I represent her?

No that is not correct. If she is convicted following a trial she will pay an income-related fine of half a week’s net income, a “victim surcharge” of 40% of that fine and prosecution costs in the region of £650. The offence carries a mandatory six points.

Your thoughts on the case and chance of success.

Who knows? There are no hard and fast rules to describe “driving”. Being stationary does not necessarily mean the vehicle is not being driven. Nor does the engine being off. It is entirely a matter for the court when they have heard all the circumstances.

…and intend to represent her at court.

Are you a solicitor or a practising barrister?

[islandgirl]

She was in charge of the vehicle and as far as I am aware the rules apply even when not moving and parking brake applied. If guilty, as explained above, the fine will be based on income not a standard amount and you will have to pay court costs. Gov.uk says: It’s illegal to hold and use a phone, sat nav, tablet, or any device that can send or receive data, while driving or riding a motorcycle.

This means you must not use a device in your hand for any reason, whether online or offline.

For example, you must not text, make calls, take photos or videos, or browse the web.

The law still applies to you if you’re:

• stopped at traffic lights
• queuing in traffic
• supervising a learner driver
• driving a car that turns off the engine when you stop moving
• holding and using a device that’s offline or in flight mode

[HandyAndy]

She was in charge of the vehicle and as far as I am aware the rules apply even when not moving and parking brake applied.

The law on using a mobile phone whilst driving is remarkably simple. It defines what a hand held mobile phone (or other device) is and goes on to say you must not drive whilst you are using one. Apart from a few definitions and exceptions, that's all it says. So, three elements to secure a conviction:

1. The device must be a hand held phone or other device.as defined by the legislation
2. The phone/device must be used.
3. The driver must be driving

Unfortunately the guidance given in various quarters is often confusing. However, the only element that concerns us here is (3) - whether or not the driver was "driving".

There is no specific definition of “drive” or “driving” in any legislation. However, some case law helps a bit (though not very much).

In Pinner v Everett in the Court of Appeal Lord Upjohn said (in respect of whether P was a "person driving or attempting to drive" at the time he was required to provide a roadside breath test):

“A vehicle may be being driven even when it is stationary. It is not necessary that the vehicle should be in motion. A person is obviously driving although he may be in an almost interminable traffic block or waiting at a level crossing or at traffic lights or if he merely fills up with petrol; nor can it make any difference if in a traffic block he switches the engine off to prevent it overheating or to save petrol."

In Edkins v Knowles the Divisional Court summarised the case-law on the subject of when “driving” ceased:

“This means that an individual stopped at a traffic light or held up in traffic could be prosecuted for a mobile phone offence. However, prosecutors should bear in mind that the intention of the legislation is to promote road safety. They should ask whether the use of the phone or other device is in circumstances which might prejudice the driver’s ability to drive safely.

A person who uses their phone while stationary at traffic lights will be distracted and less able to move off safely when the lights change. Similar considerations would apply to a driver stationary in a traffic jam.”

So if the OP’s sister decides to defend the matter and came to your court, IG, it would be for you and your two colleagues to decide whether or not she was “driving.” Hopefully your Learned Legal Advisor will point you to the case law I have mentioned (or some other examples like it) to help with your decision.

It will depend entirely on the circumstances, of course, But before I entered my "not guilty" plea I would be wary of he passages I have highlighted in the case law above. One further thing that would cross my mind is that, although she had been stationary for ten minutes, she had no idea when she would be required to move off.

[islandgirl]

Thank you for a very informative post Handyandy. Our Legal Advisor would of course point us to the case law as you say. The government advice clearly says taking a photo is using the phone and sitting in traffic is driving but of course it all does depend on circumstances.