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Title: Can I prosecute texting driver?

Date: 09 January 2013

Question

There was a Ford Fiesta in the outside lane doing 60mph with the inside lane clear. We come up behind it, flash lights repeatedly, blow horn, no response. The driver was a young mum with a child in the back. We are close enough to see her eyes in the mirror. She had her phone in her hand texting. We are behind her for 30 seconds or so while she's doing this before pulling inside and alongside and the toot the horn again. She finally looks up, outraged that we should be undertaking her. Can we take any action in the form of private prosecution or witness statements to the police as there were two of us on the bike?

Steve Ede, e-mail

Answer

The outside lane is for over taking and she should have moved over but clearly she was not concentrating on the road. By undertaking an erratic driver you run a risk because if an accident had happened you would have to give evidence that notwithstanding the fact you were aware she was on the ‘phone and driving with no consideration to other road users you nonetheless undertook her.  That would surely result in a degree of contributory negligence. That said you should forget the idea of a private prosecution – they are very expensive and the CPS can take over at any stage. Two witness statements as to her dangerous driving would be primary and corroborative evidence so the police may be interested until she denies it and the CPS decides not to continue. However if the police were minded to obtain her mobile ‘phone records she could well be prosecuted.

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