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A ringing endorsement
Page 38
Page 39
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A truck driver who successfully challenged police evidence regarding mobile phone misuse highlighted the fact that fixed penalty notices are worth contesting if the accused really is innocent.
Mobile phones and fixed penalty notices
• If you are caught using a mobile phone while driving, you will be liable for a £60 fine and three points on your licence.
• TCs can suspend your vocational licence even if you committed the offence while driving a private car.
• If you challenge a fixed penalty and lose the ensuing court case, you will be liable for costs as well as for the original penalty.
• Causing a death while driving and using a mobile phone could result in a 14-year prison sentence.
• L WEBS www.sentencing-gu i del i nes. goy. u k (under the section "death by driving")
Truck driver Anthony Jones successfully challenged the evidence of three police officers, who 'witnessed' him using a mobile phone while driving his skip lorry in Ashton-under-Lyme in May 2007 (CM 21 February, 'Driver accused of using mobile phone while driving proves police wrong'). His phone records later proved they were mistaken, and his tachograph showed his vehicle was stationary at the time. He was awarded costs of £2,600.
Jones battle to prove his innocence seems bold. Instead of paying a relatively small roadside fixed penalty for the 'offence', he risked a much larger fine, plus costs and legal fees if found guilty in court. But, in fact, it made perfect sense. He knew he was innocent and the stakes are higher now, particularly for professional drivers.
Driving while using a mobile phone became an endorsable offence in February 2007 under the 2006 Road Safety Act. Previously, drivers would have just faced a fine. Now, however, drivers face penalty points.
Losing your licence
Rest assured, Traffic Commissioners take a very dim view of the offence, too. "TCs are now totally unimpressed with HGV drivers using a mobile phone while driving, even in private use," warns Tim Ridyard, solicitor advocate and transport lawyer at Ipswich-based Barker Gatelee. "The 'going rate' for mobile phone use is suspension of a vocational licence for a short period of, say, two weeks."
Drivers may be shocked to find that this applies even if you were driving your car — not your truck — at the time. "They can't take away your car licence, but they can suspend your HGV licence," Ridyard adds. "And TCs are now calling in HGV drivers and suspending them regularly." It must be said, if you know you are guilty, it is still best to accept the penalty. A court case will automatically ensue if you challenge the police or Vosa at the roadside, and you really need to be sure they are wrong.
There is no point pleading guilty once you get to court — you'll pay the court costs plus your penalty, which will obviously come to more than the original £60... and you'll still cop the points.
Accepting a fixed penalty notice is, in effect, a guilty plea. "There's no appeal process; you shut the gate behind you," says Ridyard. "You're accepting guilt. As a professional driver, you can't then say to a TC: 'I don't accept I was using a phone'." So there is a real danger your livelihood will be affected if you accept a roadside penalty in order to have a quiet life.
Your employer could also end up suffering. A company's 0-licence ;I.may be put at risk due to its drivers' offences. "If TO thought there was a culture of mobile phone misuse, there could be a problem," Ridyard says.
The evidence against a driver will normally be put together via observation by police or Vosa operators, or from speed camera pictures. Officers in the Jones case were criticised for failing to hand over his seized mobile phone to Greater Manchester Police for analysis, although there is still a question mark over how far police will generally go if it is a simple case of driving while using a phone.
Aggravating factors
Expect a phone to be seized if there are other factors to take into account, though. Before the mandatory threepoint punishment was brought in last year, you would not have received an endorsement unless the police decided you were guilty of careless driving — something punishable by between three and nine points. Sentencing guidelines have recently been revised, and it is now the case that misuse of a mobile in a situation where there is an accident is always viewed as an 'aggravating factor'.
If you are involved in an accident on the road while sending a text or having a chat, you may not get away with just points alone. "Putting it bluntly, you will only avoid a prison sentence for careless driving if there are no aggravating factors at all," Ridyard says.
If there is a fatality while you are using your mobile, it will be all but impossible to avoid a prison term. Causing death by dangerous driving, for example, carries a maximum sentence of 14 years in prison. It is a very sobering thought. •