A motorist who was found guilty of driving while using a mobile phone after he was seen by two police officers has had an appeal against his conviction rejected.
The appellant claimed that the evidence of two police witnesses was “insufficient” to prove that an offence had been committed, but the Sheriff Appeal Court upheld the decision of the Justice of the Peace.
Sheriff Principal Derek Pyle, sitting with Appeal Sheriff Nigel Ross and Appeal Sheriff Kenneth Maciver, heard that the appellant Scott Smith was convicted by a Justice of the Peace in Glasgow of a contravention of Regulation 110(1)(a) of the Road Vehicles (Construction and Use) Regulations 1986, and section 41D(b) of the Road Traffic Act 1988.
‘No case to answer’
The evidence was that two police constables were on uniformed mobile patrol in a large four-by-four when they saw the appellant in a Ford Transit van driving in the opposite direction.
The appellant, they said, was holding a black mobile phone in his right hand at steering wheel height, level with the window and, according to one constable, appeared to be using the mobile phone by operating it with his thumb.
The second constable described the appellant as having his head down looking at the screen on the mobile phone and his thumb pressing buttons on the screen.
The appellant claimed that he was in fact holding a black note book and the defence made a “no case to answer” submission, but the justice repelled the submission and the appellant was found guilty.
However, on behalf of the appellant solicitor advocate Ann Ogg argued that the no case to answer submission ought to have been sustained.
It was submitted that it was insufficient that the sum of the evidence was that two police witnesses said that they saw what they claimed was a mobile phone.
Regulation 110 required that the Crown prove that the appellant not only had a mobile phone but also that it could make or receive a call or one or more of the other functions specified in regulation 110(6)(c), which could be achieved only by seizure and examination of the mobile phone.
If regulation 110(6) could not be satisfied at the locus, if for example the seized mobile phone was locked, it would require to be retained by the police for forensic examination, it was argued.
Refusing the appeal, the court ruled that the appellant’s submission “misunderstands the nature of the law of evidence and misconstrues the regulation”.
Justice was entitled to convict
Delivering the opinion of the court, Sheriff Principal Pyle said: “First, there is no obligation on the Crown to produce any article which is referred to in an indictment or complaint. The proper practice might be to produce the article where there is no practical difficulty in doing so, but the true question is whether the real evidence was essential for proving the case against the accused.
“In the present case the appellant’s position was that he was holding a black notebook, not a mobile phone. He said that he had no need for a mobile phone while driving as the van was equipped with a hands free system and that he did not have his own mobile phone on the day in question (although he did not say that to the constables at the locus).
“Ex hypothesi that there was no mobile phone, it follows that the appellant’s preparations for trial were not prejudiced. The court in Caldwell v PF  HCJAC XJ901/12 had no difficulty in accepting (i) that a witness recognises a mobile phone when he or she sees one, (ii) a mobile phone is ‘hand held’ if it appears to be so, and (iii) a mobile phone ipso facto carries out an ‘interactive communication function’ for the purposes of regulation 110(6)(a).”
Secondly, as was submitted on behalf of the Crown by advocate depute Jane Farquharson, even if the police constables had in some way examined the mobile phone they said was being held by the appellant, it would have added nothing to their evidence as they were not experts.
The Sheriff Principal added: “The regulation does not require expert evidence to be led in order to prove that the device falls within the statutory definition.
“Thirdly, a hand held mobile phone is an everyday appliance which is in common use. It is an object familiar to the public and police officers alike.
“A court will be entitled to accept, without the need for further evidence, that a witness can recognise a hand held mobile phone, within the meaning of regulation 110, upon seeing it, and that a mobile phone is capable for the purposes of regulation 110(6)(c) of carrying out an ‘interactive communication function’.”