A MAN who denied he was using his mobile phone whilst driving home has been found guilty of the charge at Enniskillen Magistrates Court.

Following a contested charge last Monday, June 14, District Judge Steven Keown found Turlough Cox (30), with an address of Crockroe Road, Omagh, guilty of the charge, telling him his defence for not using a phone was “implausible”.

Cox was stopped on Tempo Road, Enniskillen on January 26 by police who allegedly saw him on his phone. The two police officers and Cox gave evidence during the contest.

Both constables told the court that at approximately 11.05am, as they were travelling in a liveried police car leaving the roundabout at the junction of the Tempo Road and Crannog Way heading towards Enniskillen, they observed an approaching Mercedes van.

They saw the defendant in the van approaching the roundabout with his right hand up to his ear, holding a black object which they believed to have been a mobile phone.

In his evidence, the officer driving at the time, Constable Haire, said Cox turned his head to the right and at this point he could see his lips moving as if having a conversation.

He also said the object was black-edged and approximately 2.5 by 5 inches in size.

The officers then followed the van for two miles before signalling for it to stop at a layby opposite Garvary Church.

Constable Palmer said when he got out to speak with the defendant, he asked him did he know why he had been stopped, with the defendant saying he did not.

When he told Cox it was because he was using a mobile phone whilst driving, he said Cox said he was not using a phone.

During cross-examination of the two constables, Ciaran Roddy, barrister for Cox, put it to the officers that his client had offered to hand over his mobile phone for them to examine.

Constable Palmer said he did not recall this happening; however, Constable Haire confirmed it did, but he refused, as he believed they had justified the offence was “complete” and he was not “entitled” to take the phone.

When questioned on why he was not entitled to take the phone, Constable Haire told the court he was not trained to examine phones, and seizure would not have been justified on this occasion.

When Constable Haire was asked how he could be sure it was a mobile phone, he said if he was not 100 per cent certain he would not stop a car.

Mr. Roddy asked could the constable have been mistaken? He replied: “Not at this time.”

Evidence

During his evidence to the court, Cox told how on the morning in question he had been parked up at Quay Lane making phone calls before heading home.

He said that as he was approaching the roundabout, he had his elbow on the armrest of the van and his fist to his ear, which was a habit of his while driving.

He also provided his call history from his phone and records from his mobile provider which showed he had made a call to his wife just at 11am, and the next call on the list was one at 11.13am, which was missed as he was being spoken to by police.

Cox said he was not aware of the police car and only noticed the officers when they signalled for him to pull over.

Cox also showed his phone to the court, which had a white back with black edging.

In cross-examination by the prosecution, Cox was asked about other methods of making calls on his phone, such as using WhatsApp, and while he said he did use the app, he was not “very high-tech”.

He was also questioned on his driving approaching the roundabout as he was only using one hand to drive at the time, and it was put to him he was on his mobile phone on approach, which Cox denied.

In his submissions, Mr. Roddy said the only way his client was guilty was if he had “doctored” his call history, and pointed out he had made offers to have his phone examined.

In his findings, Judge Keown said the phone record was of “limited assistance” to prove the full picture, adding that the way Cox approached the roundabout was implausible.

Continuing, Judge Keown said the evidence from Constable Haire “could not have been more clear”, and he was certain the constable saw a phone up to Cox’s ear and observed talking on the phone, and he had no difficulty in convicting.

Cox received three penalty points and a £300 fine.