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By Benjamin Donnell

In November 2019, the Government revealed plans to tighten the law concerning the use of hand-held mobile telephones or other devices whilst driving. These reforms are expected to come into effect in Spring 2020.

With this in mind, it is worthwhile reminding ourselves what the law currently permits in relation to drivers using mobile phones and to prepare for the changes to the legislative framework which will restrict our use of devices behind the wheel further.

THE OFFENCE OF USING A MOBILE WHILST DRIVING: THE CURRENT LAW

Since 2003, it has been an offence to use a hand-held mobile telephone or other hand-held devices for the purpose of any interactive communication function (such as messaging, making or receiving calls or accessing the internet) while driving or while supervising a learner driver.

There are four basic elements to the offence which must be made out for a driver to be guilty under the legislation. The driver must be:

  • driving;
  • on a road;
  • whilst using;
  • a hand-held device.

The Legislation

The relevant law is contained in Section 41D of the Road Traffic Act 1988 and Regulation 110 of the Road Vehicles Construction and Use Regulations 1986 (“the legislation”). Section 110 (6) (a) of the 1986 Regulations states that a mobile phone is to be treated as a hand-held device if it must be held at some point during the course of making or receiving a call or performing any other interactive communication function. An ‘interactive communication function’ is defined at Section 110 (6) (c) of the Regulations as including:

  • the sending or receiving of oral or written messages;
  • the sending or receiving of facsimile documents;
  • the sending or receiving of still or moving images;
  • providing access to the internet.

When are you not allowed to use your mobile whilst driving under the legislation?

It is clear then that, when driving, drivers are not allowed to use their mobile phones, without the assistance of hands-free technology, to:

  • to make or receive calls;
  • to send or receive picture and text messages;
  • to access the internet.

Drivers are also not allowed to use their mobile phones to do any of the above when they are stopped at traffic lights or queuing in traffic.

This also extends to the use of mobile phones for navigation. If drivers wish to use a navigation mapping app on their smartphone, they must set it up before driving and fix the phone to their windscreen or dashboard so that it is in clear view while driving (without obstructing the driver’s view) meaning you do not need to hold or interact with it.

If you are an employer, you can be prosecuted if you ask employees to make or receive calls while driving.

It is worth remembering that the police have the power to stop drivers if they believe they have been distracted by using a mobile phone. This applies even if it is fully hands-free and otherwise not prohibited by the legislation.

When can you use your mobile when driving under the legislation?  

The use of a hand-held mobile phone whilst driving is permissible in the following situations:

  • To call 999 or 112 in response to a genuine emergency where it is unsafe or impracticable to stop;
  • If you are safely parked;
  • If you are a passenger.

What are the issues with the current law?

The legislation does not ban all use of a hand-held device whilst driving. Rather, it only prohibits driving while holding a mobile phone or other device which the driver is using for calls or any other interactive communication function. Thus, it is currently permissible for drivers to hold and use their phones as long as they are not sending or receiving data. The case of DPP v Barretto [2019] EWHC 2044 underlines this lacuna within the current legislation which enables some drivers to evade the legislation.

In DPP v Barretto, Mr Barretto was caught using his phone to video record an accident whilst driving his vehicle. Mr Barretto successfully submitted to the High Court that by using his mobile to make a video record he was not using his phone to perform a call or an interactive communication function and so he was not guilty of the offence. The Court agreed that such activity was not banned by the legislation and found that whilst Mr Barretto could be guilty of another offence such as driving without due care (which can carry a lower sentence); he was not guilty of driving whilst using a hand held mobile.

DPP v Barretto highlights that the current law has failed to keep up with the development of smartphone technology and thus, leads to nonsensical situations in which drivers can evade the law despite conducting an activity (e.g. holding a phone and video recording) that creates the same risks as those covered by the offence (e.g. holding a phone and talking).

Due to these issues with the legislation, the Transport Select Committee of the House of Commons has concluded that tighter regulation is required and for good reason.[1]

Despite this change of law almost 17 years ago, there is evidence that the use of hand-held mobile phones whilst driving, without the assistance of hands-free technology, remains prevalent. According to the RAC Report on Motoring 2019, 23 per cent of all drivers, equivalent to just under 10 million motorists, confess to making or receiving calls to hand held mobile devices whilst driving. Amongst drivers aged 17 to 24, this statistic increases to 51 per cent.[2] Indeed, I have regularly witnessed drivers texting or talking on their phones whilst driving and members of Estuary Chambers routinely prosecute and defend such matters; indicating that many people still take the risk of using their mobiles at the expense of their concentration whilst behind the wheel.

Clearly many drivers still do not see the harm in using a hand-held device whilst driving. Nevertheless, statistics provide a stark warning as to how using your mobile phone, even just for a few seconds, can have catastrophic consequences for life and limb. In 2017, the Department for Transport reported that there were 773 casualties, including 43 fatalities and 135 serious injuries, caused by accidents where a driver using their mobile phone was a contributing factor. These statistics clearly fly in the face of those who might prefer that the government takes a more laissez-faire approach to drivers who use their mobile phones.

CHANGES THAT WILL BE MADE TO THE LAW

In essence, the law is being expanded to close the above lacuna in the legislation and cover all activities associated with the use of a hand-held device that can impair a driver’s concentration behind the wheel.

Soon drivers will not be able to use their devices in any capacity while driving. You will not be able to touch your mobile phone without the assistance of hands- free technology.

Whilst the Transport Select Committee also recommended the banning of all hands-free technology, it appears that lawmakers will not be making this illegal. As such, drivers will still be able to make or receive phone calls using hands-free technology. Any hands-free device must be fully set up before you drive to avoid any need to handle the device.

As under the current law, the police will still be able to stop you, even if you are using hands-free technology, if they suspect that you are distracted by your device.

It is not yet clear whether you will still be able to handle your mobile to call 999 or 112 in response to an emergency when you are not able to safely park under the new law.

THE PUNISHMENT FOR USING A MOBILE WHILST DRIVING

Successive governments have sought to deter drivers from using their devices by toughening the punishments available to the police and courts. Currently, you can expect to get a fixed penalty of six points and a fine of £200 if you commit this offence. This was increased from the previous penalty of three points and a £100 fine in March 2017.

There is a maximum fine of £1000 for those driving a car and £2500 for HGV and bus drivers.

This punishment can carry serious adverse consequences for your license. If you have held your license for two years or less than you will automatically lose it because you are only allowed to have a maximum of six points in your first two years of holding a driving license.

If you have held your license for two years or longer, you will lose it if you receive twelve points within a three-year period. This would amount to just two use of phone offences in total.

If the police feel that it is a particularly extreme instance of using a mobile phone whilst driving, or you refuse to take the above penalty points and fine, you could find yourself summonsed to attend court.

Those motorists involved in accidents caused by using a hand-held device behind the wheel could also face charges of dangerous driving. Judges are obliged to sentence such motorists to a two-year ban if convicted and the Government are considering increasing the penalty for causing death by dangerous driving or careless driving from 14 years to life imprisonment indicating that the most serious offences will not be dealt with lightly.

Drivers will be well advised to invest in hands-free technology going forward to ensure that they are not caught out by the changes to the law.

If you would like to instruct a member of Chambers, please do not hesitate to contact us at info@estuarychambers.co.uk

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