Legal loophole clears MSP of using his mobile phone while driving

Conservative MSP Ted Brocklebank’s solicitor said there was no evidence to suggest the device his client had been looking at, had actually been “used” to send or receive communications.

Police claimed they had seen Mr Brocklebank examining a mobile phone while driving at Guardbridge, near St Andrews, on May 7, last year.

But, yesterday, Justice of the Peace Harry Terrell said he had no option but to rule that Mr Brocklebank, who represents Mid-Scotland and Fife, had no case to answer.

Justice Terrell said: “We are clearly in uncharted waters here, legally, and I have no option but to fall back on my own experience of the word ’using’.

“There was no evidence presented of the word ’using’ being used in the normal sense of the word and therefore I conclude there is no case to answer.”

PC Claire Galloway,31, of Fife Police road traffic division told Cupar district court that, at around 10am on May 7, 2007, she witnessed Mr Brocklebank drive past in a Range Rover.

She said: “The driver had his right hand on the steering wheel and his left hand was holding a mobile phone. We could clearly see him looking down at his mobile phone.”

PC Galloway and her Fife Police colleague, PC Andrew Walls, 40, followed Brocklebank and pulled him over where he was cautioned and charged with illegally driving while using a mobile phone.

PC Walls also gave evidence that he saw Brocklebank holding a mobile phone in his left hand.

However, under cross-examination by solicitor James Laverty, PC Walls accepted that it was “possible” Brocklebank had been “looking at the centre console or the passenger seat area” and not at the phone.

Procurator fiscal Joanna Nicholson said that while there is no definition of the word ’using’ in the legislation, surely holding a mobile phone while driving should be considered as usage.

She said: “We have to ask what parliament’s intention was when they introduced this legislation.

“It was clearly not to stop people speaking on the phone, or else they would have banned hands-free devices. The legislation is there to stop people becoming distracted and to stop them taking their hands off the wheel.

“Both officers clearly saw the accused with one hand on the wheel, with the phone in his other hand and that he was looking in the direction of the phone.”

But Mr Laverty responded by saying that just because a police officer describes a mobile phone, “it does not make it a mobile phone.”

He said: “There may be suspicion in relation to what my client was doing, but we have heard no direct evidence in relation to the use of the mobile phone and its status.

“The Crown has failed to show that the item was in working order and, without that, we are left in the situation that this offence by Mr Brocklebank has not been proved.”

Mr Brocklebank refused to comment after the hearing.

The mobile phone laws were first introduced in 2003.