A Bristol man has been convicted of using a hand-held mobile phone whilst driving, after unsuccessfully arguing that his car engine had been switched off at the time.
Joseph Scott, 36, of Muller Road, Horfield, Bristol, denied using a hand-held mobile phone whilst driving, but was convicted at trial at Bath Magistrates' Court on Wednesday, 26th April 2023.
Using a hand-held mobile phone or other hand-held interactive communication device whilst driving is an offence under section 41D of the Road Traffic Act 1988.
The maximum penalty for this offence on summary conviction is a fine at level 3 (£1,000). Additionally, since 1st March 2017, the court has been obliged to endorse the offender's driving licence with 6 penalty points.
In circumstances that aren't immediately apparent, Scott was spotted using a hand-held mobile phone on Stapleton Road, Bristol sometime back in April 2022.
Given the limited reporting of this case it is not apparent if Scott was represented at trial, but I suspect not.
It would appear the basis of Scott's defence was that he was not driving the vehicle at the time he was observed using his hand-held mobile phone because it was stationary at a red traffic light and the electronic stop-start function had turned the engine off.
The Crown Prosecution Service's website, which I paraphrase below, provides a nice summary of the relevant legislation.
Whether or not a person is driving a vehicle is a matter of opinion for the court, but case law (Edkins v Knowles [1973] 57 Cr App R 751) has established some important factors for consideration:
- The vehicle need not be moving in order for driving to take place. Once the vehicle has come to rest there are certain operations - applying the handbrake, switching off the ignition, securing it etc - that should be considered as part of the driving process.
- Whether or not the driver has reached the end of their journey. Subject to the brief interval required to carry out the operations mentioned in the preceding bullet point, if they have reached the end of the journey then they should no longer be regarded as driving.
- When the driver stops during their journey following questions will be relevant in deciding whether they are still driving or not:
- Is the purpose of the stop connected with the driving?
- How long was the stop? The longer it was the less likely it is that they can still be considered to be driving;
- Did they get out? If not, that is an indication (although not conclusive) that they are still driving.
- When a motorist has been effectively prevented or dissuaded from driving then they are no longer considered to be driving.
The upshot of that is, if a vehicle momentarily stops at traffic lights then even if the engine automatically cuts out a motorist can still be considered to be driving. That being the case, if they're using a hand-held mobile phone at the time a vehicle momentarily stops then they can still be considered to be using a hand-held mobile phone whilst driving.
Scott was fined £228 and ordered to pay £34 surcharge and £620 towards prosecution costs.
His licence was endorsed with 6 penalty points.
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