A FORMER election candidate and well-known Hampshire businessman claims he has won a landmark court battle after overturning his conviction for driving while using a mobile phone.

Kim Rose claims his case could encourage others to follow after it emerged that police officers did not check his phone for evidence after he had been stopped.

The jeweller says other motorists who believe they have been wrongly convicted should appeal.

Mr Rose, UKIP parliamentary candidate for Southampton Itchen, was previously ordered to pay £370 by Southampton magistrates in July, after an undercover officer allegedly caught him using a device while driving in Hampshire.

The case comes as figures released today show that prosecutions for motorists using their phone at the wheel are down to 17,400 – almost half the figures five years ago.

Southampton Crown Court, sitting at Winchester, heard how Mr Rose, of Burridge Road, Burridge, was seen using a mobile phone in his black Mercedes by PC Lee Paddock during a major police operation on Botley Road and was then stopped by PC Adrian Berry.

The court heard how 58-year-old Mr Rose was the first driver stopped during the operation in June.

PC Paddock told the court he radioed colleagues after spotting Mr Rose’s head and shoulder “hunched up” through the vehicle’s open roof.

PC Adrian Berry, who pulled him over, told the court that Mr Rose’s body positioning “gave the impression” he was using a phone – despite not seeing one.

But Mr Rose told the court the object was a pillow easing injuries sustained in a car crash in June 2013.

He showed a similar pillow during the hearing and explained he was on the way to see the physiotherapist when PC Berry pulled him over and claimed Berry was not prepared to listen or even check his phone.

The judge, Mr Recorder Selfe, questioned PC Berry about why he didn’t look at Mr Rose’s phone.

PC Berry confirmed he did not check Mr Rose’s phone and said: “There was probably more going on at the time with traffic and with the conversation with him, so I did not check. Mr Rose said he was going to the doctors and he was busy and said how long is it going to take me to complete the process.”

The court overturned Mr Rose’s conviction and the judge said: “We have considered this case, I should say that in this case all three of us are in doubt to your guilt.

“You do not have to prove your innocence but the prosecution has to prove your guilt, it is finding that your guilt is in doubt, therefore your conviction has been quashed.”

Speaking after the appeal hearing, Mr Rose said: “I am pleased that common sense prevailed and my faith in the justice system is restored. When you are innocent it is much easier to go court and defend yourself because you are telling the truth.

“It is a total error – how many people would lie down and just take the punishment and not appeal? So many people would take the points and just forget about it.

“There are people out there that are probably not guilty of using a mobile phone but because the police said they did something and they are sure, so they just take the punishment.

“The fact is the policeman should have checked that phone and he did not. I would like an apology from Hampshire police about this.”

A spokesperson for Hampshire Constabulary said: “It is important that officers working on organised traffic operations fulfil their duty and pull over any driver who they believe to be committing a road traffic offence for the safety of the general public.

“Officers will seize mobile phones in certain instance, such as when there has been a serious road traffic accident, but for this type of offence it is not considered necessary if one or more credible witnesses have seen a person using a device.

“As a matter of protocol we will caution a person who is believed to have been committing an offence.

“This is a legal procedure for their benefit which explains their rights and entitlements.”

An AA spokesman: “It’s everybody’s right to challenge the courts but it’s a gamble. People shouldn’t try their luck and appeal because they can and a well-known figure tried and successfully did. I worry this sort of encouragement means many think they can try. One case where an appeal has been successful does not mean they all will be.”