Legal i

Mobile phone held or not?


I recently received a phone call in my car, when I was driving my car very slowly in heavy traffic and approaching a red traffic light. On average, I was braking approximately every one metre as I neared the traffic light. At one point, the vehicle was stopped, the hand brake was applied and the vehicle was put into park mode, with both my hands remaining on the steering wheel. My mobile phone was located on my lap, on loudspeaker.


I was observed by a police officer, who stopped me and warned that I would be reported for prosecution. However, I was not holding the phone to my ear, I kept a good view of the road, and I believe that I did not present any danger to other road users, nor myself. I have now received a notice offering me the chance of attending a rehabilitation course in place of a court hearing, but I am working abroad, having just started a contract for three years, and I am not due to return to the UK until after the time allowed to complete the course.


I currently have no penalty points on my driving licence. What should I do?



The offence of using a mobile phone is committed if it is actually held, or must be held at some point during the course of making or receiving a call, so even though your phone was on your lap when you were seen by the police, it would necessarily have been held to make or receive the call. There is therefore no defence to the charge that you have received, but it is possible that you could persuade a court that because your car had barely moved during the call, the court should apply ‘special reasons’ for not endorsing your licence with penalty points, even though you would still be convicted. This assumes that you have no other defence, such as making an emergency services call in a genuine emergency.


I consider it unlikely that a court would agree that special reasons exist in the circumstances of this case, but it is within their discretion. The difficulty is that you would have to attend court in person (even if you are legally represented) to give evidence on oath about the incident. As you have no points on your licence at this time, and only three points can be endorsed for the offence, you are unlikely to accumulate 12 points within three years because of the time you will be living abroad. For all these reasons, I advise you to accept the offer of attending a rehabilitation course, if possible, but if this is not feasible, then to plead guilty by post (if and when you receive a court requisition) and set out in writing the circumstances of the offence, and anything else you can say about your driving record, in mitigation.


Meanwhile, you should respond to the offer of attending the course as quickly as possible, to accept the offer, but explain the date on which you are due back in the country, and therefore ask that your time for attending the course is extended until then. You might also phone the course provider to ask if they could extend your time. The offer letter will state that the offer of a course would be withdrawn automatically if you do not book the course within a specified number of days from the date of the letter, and attend the course within four months from the date of the offence, but it is worth trying to get an extension.


Designed by solicitors, tested by barristers and available around the clock, Road Traffic Representation is an online legal system that allows people accused of a motoring offence to get free advice on how the law will be applied in their case, and referral to a telephone helpline and representation by a barrister in court if required. Practising solicitor Martin Langan spent two years designing the system and creating the data repository which allows the software to analyse road traffic offences with the same authority as a solicitor.

Twitter: martinlangan

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