Author: Steven Farmer

A article published in the Glasgow Herald on 14 August has stated Scotland “has been found to have the highest levels of distracted driving offences in the UK”. Asked to comment on the findings, a spokesman for our moral guardians at Brake stated:

The number of distracted driving offences in Scotland is cause for concern and highlights that there is still much work to be done regarding the dangers of phone use behind the wheel. We need urgent clarification of the law on using hand-held mobile devices while driving, including closing loopholes which treat sending or receiving data differently. The current law also provides a dangerous false impression that it is safe to use a mobile phone with a hands-free kit – it is not. All phone use behind the wheel is dangerous, and we need the law to reflect this by banning the use of hands-free devices

Quoted in Glasgow herald, 14 august 2019

Apparently – in linked news – the transport select committee of the UK Parliament is now recommending a blanket ban on all mobile phone usage while driving including hands-free use

So just how accurate is the claim made in the Herald? Do I agree with Brake? Should the UK Parliament legislate to ban hands-free mobile phone use while driving? My answers, respectively, are “dunno”; ” with a wee bit of it”; and “no”.

First let me make clear what I do agree with. I agree with the increased penalty for driving while using a mobile phone. I agree that driving while using a mobile phone can be distracting. I agree that using phone in a “hands free” capacity can also be distracting. And before anyone says “how is that different from talking to a passenger”, we would suggest that they read this article from the New York Times. For numerous reasons, chatting on the phone simply is more distracting than chatting to a passenger. Whether it amounts to a criminal level of distraction is another issue.

Now for the problems. First the methodology. The Herald bases its claim that Scotland has (current tense) the highest levels of distracted driving offences in the UK primarily on research carried out by Peter Vardy car dealership. This revealed that in around nine months after the increase in penalties for driving using a mobile phone, there had been 8,747 recorded offences across 13 constabularies in the UK. Scotland was said to have been the worst region, accounting for 2,220 of these.

Now that all sounds pretty darn impressive. But consider it more closely. The data encompassed a time period of March 2017-December 2017. That is hardly current. Furthermore it is based on a survey of 13 constabularies across the UK. The last time I checked (today), there were 43 such constabularies. So a more accurate headline would be that Scotland had the highest level of distracted driving offences in a survey of less than a third of the UK’s constabularies. But that is less catchy I suppose.

Second, some of the inaccurate and unchallenged remarks made by the Brake spokesman. For example, the claim that “all phone use behind the wheel is dangerous”. I recall a recent case of ours where it was alleged (incorrectly as it happens) that our client was checking a text while sitting stationary at a red light. That may be illegal but is it “dangerous”? Many are now calling for obligatory disqualifications for using a mobile phone while driving. Does the above case really merit a disqualification? Opinions will vary, of course, but to rob a court of its common sense discretion achieves nothing. Another nugget from Brake was the claim about loopholes “which treat sending or receiving data differently”. There is no such “loophole”.

And third, what about the suggested solution to our problems? A ban on “hands-free” use. The article focuses on the tragic case of Yvonne Blackman, a lady killed by an HGV driver using his mobile phone. The gentleman concerned correctly pleaded Guilty to causing death by dangerous driving after focusing on his phone for a full 18 seconds instead of the road. That case has nothing whatsoever to do with using a phone in a “hands-free” capacity. The driver was touching his phone for the majority of the time as was obvious from the in-cab footage of the incident.

The fact is that Parliament considered banning all mobile phone use when debating the introduction of mobile phone legislation, including hands free use. The conclusion was that it would be too difficult to police. And that is obvious. It is one thing when there has been a tragic accident. In those circumstances the police will usually seize the suspect’s phone and have it analysed for use at the time. If it has been used, even in an otherwise legal “hands free” manner, it is still a relevant fact in the case and will inevitably be seen as an aggravating factor in a case of causing death by careless driving or – more likely – causing death by dangerous driving.  However what about everyday policing? How exactly are the police meant to know if someone is using their phone in a hands-free capacity? Spotting a earpiece? Seeing lips move? Or are we to allow random checks of mobile phones for calls/texts/emails/internet searches with no way to be sure that the data displayed on the phone is accurate? Assuming the case proceeded to trial my view is that the Crown would require to produce the phone’s data in court. They would also need to cite the relevant expert who interrogated the phone. Any attempt to have a police officer speak to a call record which was not actually produced in evidence but that he had seen on the phone would fall foul of the rules of best evidence. Even then there would be myriad difficulties if, for example, there was more than one person in the car at the time. How does the Crown prove that the driver was the one actually using the phone?

But the bigger point is that there is no lacuna in the law. If a driver is distracted to a criminal extent due to using a phone in a hands free manner, legislation already exists to deal with it. Such a driver could be prosecuted for careless or dangerous driving or even section 41D(a) of the Road Traffic Act 1988 which specifically deals with distracted drivers. All that articles such as this – with its questionable methodology – do is inflame the readership. A look at the comments section to the article alone accomplishes that. My particular favourite was a reader who had a particularly inventive way to get round the evidential difficulties I alluded to above by stating “perhaps immediate roadside driver disqualification in obvious and flagrant cases would be particularly effective”. I’m sure it would be. All we need to do is forget about due process, the presumption of innocence and all those other annoying things that defence lawyers seem to think are important. Because if the police think they saw something they must of course be 100% correct. But it would only apply to “obvious and flagrant” cases one may say. And who decides what is obvious and flagrant. For “immediate roadside disqualification”, it would have to be the police. Despite our current Prime Minister’s populist push for “law and order”, we don’t live in a police state yet and hopefully we will not be living in one anytime soon.

The correct answer, of course, is the Sheriff Appeal Court (SAC) is not on anybody’s side. It approaches each case neutrally, favouring neither the prosecution nor the defence. But that is not always how it feels, certainly not from a road traffic perspective. The recent decision in the successful Crown appeal against Kevin Coulson certainly rattled my cage. This was a Crown appeal against an acquittal secured by one of my competitors. Much as one may think I would wallow in their failure, I certainly do not. I’m not going to go into the case here as I intend to discuss it in more detail at another time. Suffice to say, however, I 100% agreed with the submissions made by the defence in this case and respectfully disagree with the decision of the court.

This was the 2nd such Crown appeal against a competitor of mine with which I found myself in complete disagreement. In PF Perth v David Martin [2018] SAC Crim (9), the Appeal Court went, in my opinion, to extraordinary lengths to allow a Crown appeal against acquittal in a speeding case involving average speed cameras. In order to find the necessary precedent, the Appeal Court dusted off the archives and relied on the case of Scott v Jameson. Scott v Jameson was decided in 1914. The last time I checked, there were barely any cars in 1914 and there certainly weren’t any average speed cameras.

Such decisions as these lead to practitioners like myself complaining about the decisions of the SAC. “Whats the point in even appealing?” is, in my opinion, a fair reflection of the views of very reasonable defence practitioners around the country. But is this view merited?

It is possible to carry out an impartial audit of all reported SAC decisions since its inception. Of course many cases are unreported so this analysis is a limited one. But its results surprised me. Since its inception, there have been 68 reported defence appeals in the SAC. Of these, 32 were allowed or partially allowed. That is a proportion of 47%. Hardly fits the picture of a prosecution-centric SAC. Even if we take the 5 partially-allowed appeals and move them to the “refused” column, the proportion of allowed appeals is still 40%. Of course there is more than one kind of appeal and it seems that the defence have more cause to be optimistic when appealing against sentence than against conviction.

Appeals against Sentence

There are 41 reported defence appeals against sentence. Of these, 24 were allowed (3 partially). That is a proportion of almost 59% (or 51% if you move partially allowed appeals to the “refused” column). Not all of these decisions are necessarily good outcomes for the defence. The decision in Love v PF Kilmarnock [2018] SAC (Crim) 12 is a good example. A disqualification from driving was reduced from 16 months to 10 months, meaning the appeal was technically “allowed”. However, when one considers that the offence was speeding at 92 in a 70 limit – for which the appellant was offered a fixed penalty – the penalty still seems brutally harsh, the poor driving record of the appellant notwithstanding. But 59% is 59%.

Appeals against Conviction

This paints a less friendly picture for the defence. I have included here appeals raising “procedural” points such as decisions to allow Crown adjournments. In total there were 27 such cases. Only 8 were allowed, 2 of which were only partially allowed. That is a refusal rate of 70%, rising to 78% if we move the partially allowed appeals to the “refused” column.

The difference is quite stark – a refusal rate of 41% for appeals against sentence against 70% for appeals against conviction and procedural appeals which would have similar effect. And there is one final category which may truly rankle.

Crown Appeals

Crown appeals to the SAC are rare. Since inception in 2015 there have been only 8. And the success rate? 100%. That’s right. Every single Crown appeal has been allowed, including the decision in Coulson that propelled me to research this article in the first place. If we add these 8 to the unsuccessful defence appeals against conviction, we get a Crown success rate of 77%. If we move the partially successful defence appeals to the “refused” column, this rises to a mammoth 83% success rate for the Crown.

The Big Picture

It seems that the defence does considerably better at the SAC when it is not squaring off against the Crown. The difference in success rates between appeals against sentence (in which the Crown rarely plays a part) and appeals against conviction/Crown appeals is stark. On balance, though, I found myself surprised that 47% of all (reported) defence appeals were successful.

That was not the only thing I found surprising. Of all the reported cases (and I have read them all) there is not one dissenting judgement. And the amount of reported cases has fallen sharply. In 2016, 33 cases were reported. This fell to 18 in 2017 and 17 in 2018. In 2019 to date (1st July 2019 so exactly halfway through the year) there has only been 5 reported cases, 4 of which were Crown appeals (one of which was conjoined with an unsuccessful defence appeal). The 4 Crown appeals reported in the first half of 2019 equals the entire amount of Crown appeals between 2015-2018. If the reported cases accurately reflect the proportion of all cases heard by the SAC, it is suggestive of increased Crown activism to appeal coupled with defence reticence (and/or fewer defence cases passing the sift). While it seems my own opinion about successfuly appealing to the SAC was pessimistic (in relation to sentence at any rate), it does seem that the perception is influencing the reality.