Gathering points while you drive

"They do not need to stop your car to issue you with a penalty. Three points in the post might follow an opportunistic call. That should be a warning to motorists that this is a law that will be enforced and they will not get away with it." - EDMUND KING, RAC FOUNDATION

Story in full MOTORISTS who believe they have got away with holding a mobile phone while driving could be in for a nasty surprise - punishment by post.

Police forces across Scotland are preparing a zero-tolerance approach to drivers flouting the law when new penalties come into force on Tuesday - and last night they confirmed they did not even need to stop drivers to be able to punish them.

That means officers merely seeing a violation could result in a penalty, and police on foot will be able to target passing drivers in the crackdown.

A driver may only know he or she has been caught when a letter drops through the letterbox telling them they have three penalty points on their licence and have to pay a 60 fine.

Lothian and Borders Police said it was looking at using the technique to catch drivers breaking the law, possibly starting within the next two weeks. Other forces said they were aware of the power and would consider using it.

However, motoring groups and human-rights lawyers have raised concerns.

Although driving while holding a mobile phone has been illegal since 2003, up to one in eight motorists are still breaking the law, according to a survey by the insurer Direct Line. But from next Tuesday, the fines will double to 60 and three penalty points will be added.

Several forces are planning crackdowns to coincide with the change, with Strathclyde Police stepping up patrols from today. Fife Constabulary is planning several "days of action".

Lothian and Borders Police is looking at using parked patrol vehicles equipped with cameras to record drivers using hand-held mobiles. Fines would then be issued by post. That tactic would be in addition to stepping up their mobile patrols, which will stop offenders' vehicles.

The force has just completed a three-week survey in which a driver using a phone was observed every five minutes.

A spokeswoman said officers would follow a "zero-tolerance" approach in a week-long crackdown from Tuesday. She confirmed that foot patrols also had the power to stop drivers or report them for prosecution. She said: "We may also start using unmarked cars in fixed positions and report all offenders."

Strathclyde Police said it had used this power in the past, and it might be used again.

Neil Greig, the head of policy in Scotland for the Institute of Advanced Motorists' Motoring Trust, said it was the wrong approach: "Most people expect this to be enforced by face-to-face contact with police, which has a powerful effect on drivers."

Bruce Young, the Lothian and Borders co-ordinator of the Association of British Drivers, said: "It is very unfortunate that the easy policing created by speed cameras can make its way into general policing. It seems cavalier to be expanding this type of enforcement."

Some forces are not planning to use such tactics, with Northern Constabulary saying drivers would have to be stopped and informed. A spokesman said: "It is not something that would appear in the mail like a speeding ticket."

Tayside Police said it would make every effort to stop and notify offending drivers - they would not receive unexpected penalty notices in the mail.

The RAC Foundation, which has urged mobile phone retailers to improve their safety advice, backed the police move.

Edmund King, its executive director, said: "They do not need to stop your car to issue you with a penalty. Three points in the post might follow an opportunistic call. That should be a warning to motorists that this is a law that will be enforced and they will not get away with it."

In the past, the power to prosecute motorists without stopping them has not been routinely used.

Those stopped are asked to accept a fixed-penalty notice. If they refuse, the case is reported to the procurator fiscal, which can lead to a court case.

Police spotting motorists using mobiles send a letter to the vehicle owner asking who was driving at the time. If the owner refuses to answer, they can be charged with not co-operating with the police, which is seen as a far more serious offence.

This process, which is used in speed-camera cases, is being challenged by two British motorists in a test case at the European Court of Human Rights. Idris Francis and Gerard O'Halloran claim their right of silence would be breached by having to declare who was driving.

Ministers said motorists using mobiles were four times more likely to crash. Driver reaction times have also been found to be worse than those of drink-drivers. In 2005, 13 people were killed and 400 injured in crashes involving mobile phone use.

Q & A: WHAT EVERY DRIVER NEEDS TO KNOW

WHAT are the new penalties for using hand-held mobile phones while driving?

From next Tuesday, the fine (fixed penalty) doubles to 60, with the new addition of three penalty points.

Do the penalties cover the sending and receiving of text messages or pictures?

Yes, and even while stationary in traffic queues, such as at traffic lights.

Do they also cover BlackBerrys and personal digital assistants

Yes.

Is two-way radio equipment covered?

No.

Do they cover motorcyclists?

Yes. People supervising L-drivers are also covered.

What about cyclists?

They are not covered, but those using phones could still be prosecuted for careless cycling.

Are there any exceptions?

Drivers may call 999 in a genuine emergency where it would be unsafe to stop.

What about hands-free mobiles?

Using these is not illegal, but the same penalties apply if a driver is distracted while making a call and does not keep proper control of their vehicle.

What if I do not accept the fixed-penalty charge?

If the case goes to court, the maximum fine is 1,000, or 2,500 for van, lorry, bus and coach drivers.

How would police prove who was using a hand-held phone if they did not stop the driver?

A letter would be sent to the vehicle owner. If the owner refuses to say who was driving, they could be charged with not co-operating with police. Corroboration would be provided by two police officers, which could be backed by cameras.

Must police prove a driver was actually making a call?

No.

Can police foot patrols also act?

Yes, either by stopping a driver or reporting them for prosecution.

Why the crackdown?

The government says a phone conversation (or texting) distracts from the mental concentration needed to drive safely. Research has shown drivers' reaction times are up to 50 per cent slower than normal when driving and using a mobile phone.

Why not ban all mobile phone use when driving?

The use of a hands-free phone or other equipment is not specifically prohibited because it is difficult for police to see it in use.

Must I switch off any phone in my car?

No. Passengers can still use hand-held phones. The government advises motorists who are driving alone to not turn their phones off but switch them to voicemail, message-service or call-diversion and return calls when safely parked.

Are employers liable for prosecution?

Yes. Police say that employers who require staff to make or receive calls while they are driving on business could face action.

Onus on car owner to prove who was driving

AS OUR road-traffic law moves to try to keep pace with modern driving sins, how will it work in practice?

We are used to speeding offences and related procedures. Using your hand-held mobile phone is likely to be similarly dealt with.

Unfortunately, this may mean occasions when the police do not pull you over at the time of a suspected offence.

In that case, you may receive a notice weeks later demanding the identity of the driver on a specific date when an offence is suspected.

It is an offence carrying a fine and penalty points not to reply to such notices. Thereafter, you may receive a fixed penalty or citation months later.

This approach can cause practical problems for a person who cannot recall events some time later. Were they driving the car or was it a wife/husband/employee/colleague?

In relation to fixed penalties for speeding, some devious drivers with no room for penalty points have persuaded someone else to take the blame for them.

This may happen more with the change in the law relating to phones.

It is a practice which can result in imprisonment for any parties proved to have tried to pervert the course of justice. To avoid any difficulties or unfairness, it is to be hoped that the police will normally pull over the driver unless there is some other pressing business.

If cited to court, the normal procedures will follow and the charge can only be proved if two police officers can identify the perpetrator.

If the car is yours, the onus will be on you to demonstrate who was driving or else you run the risk of being convicted.

If you know you committed no offence, you are entitled to a trial.

Occasionally, police officers have even been known to admit a mistake, but our courts generally take the view that the police make mistakes less often than the ordinary motorist.

• John Scott is a solicitor- advocate and partner at Capital Defence Lawyers in Edinburgh

JOHN SCOTT