A FIFE MSP accused of using a mobile phone while driving has been cleared due to a lack of evidence he was using the device to send or receive communication at the time.

Tory Ted Brocklebank (65) had been charged with driving a car while using a hand-held mobile phone in Guardbridge Main Street on May 5 last year.

But at Cupar District Court yesterday Justice of the Peace Harry Terrell accepted there was no case to answer and found him not guilty.

It is understood the Crown Office may appeal the ruling.

Two traffic police officers said they saw the Mid Scotland and Fife MSP, who lives in St Andrews, holding the phone in his left hand as he passed them in his Land-Rover Discovery.

Brocklebank was cautioned and charged by constables Claire Galloway and Andrew Walls, and PC Galloway told depute fiscal Joanna Nicholson that he had accepted the offer of a fixed penalty.

However, he later pleaded not guilty by letter and yesterday defence solicitor James Laverty claimed it had not been proved the politician was using the phone to make or receive a call or for “other interactive communication.”

Neither, he said, had it been proved that the item was a mobile phone or working at the time.

Mr Laverty suggested his client might simply have been checking if the device was switched on.

Ms Nicholson told the court, “The legislation is there to stop people from becoming distracted and from taking their hands off the wheel.

“We have heard both officers speak to the fact that they clearly saw the accused with one hand on the wheel and with the phone in his other hand and that he was looking in the direction of the phone.”

“His full attention was not on the road at the time and it is my submission that that falls within the definition of using a mobile phone in terms of the legislation.”

Mr Terrell said he found himself in uncharted waters legally and had to rely on his own experience of the word ‘using.’

“Using means using. It does not mean available for use.”

He told Brocklebank that since no evidence had been presented on whether he was using the phone he had no option but to find him not guilty.

The MSP declined to comment following the hearing.