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Road Traffic: Mobile phones

Revised 6 November 2019|Legal Guidance, Driving offences

Introduction

This guidance has been produced to assist Prosecutors in cases involving the use whilst driving, of a hand-held mobile phone or other device, which performs an interactive function by transmitting and receiving data.

Since 2003, it has been a specific offence to use a hand-held mobile telephone or other hand-held device for the purpose of any interactive communication (such as messaging, making or receiving calls or accessing the internet) while driving or while supervising a learner driver. In DPP v Baretto [2019] EWHC 2044 (Admin) the High Court clarified the law relating to use of hand-held mobile telephones and other hand-held devices while driving. The case concerned a driver who used his mobile telephone whilst driving to record a video of a road traffic collision scene. 

The High Court decided that this use was not prohibited by sections 41D of the Road Traffic Act 1988 (“the RTA”) and Regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986 because the phone was not being used to perform an interactive communication function but only to access an internal function on the phone.

Offences

The Road Vehicles (Construction and Use) (Amendment) (No 4) Regulations 2003 came into force on 1 December 2003. They amend the Road Vehicles (Construction and Use) Regulations 1986, by inserting Regulation 110 into the constructions and use regulations.

Regulation 110(1) and (2) prohibits a person from driving, or causing or permitting a person to drive, a motor vehicle on a road if the driver is using a held-hand mobile telephone or a hand-held device for an interactive communication function. Regulation 110(3) prohibits a person from using a hand-held mobile telephone or hand-held device while supervising a holder of a provisional license (learner driver), whilst the learner is driving.

It is an offence under Section 41D(b) of the RTA to contravene Regulation 110. The penalty imposed will depend upon the type of vehicle driven.

Key Definitions

“Hand-held”

Regulation 110 does not define “hand-held” although  110(6)(a) states that a mobile phone or device is to be treated as hand-held if it is, or must be, held at some point during the course of making or receiving a call, or performing any other interactive communication function.  The correct interpretation of this is that it is a deeming provision which extends the meaning of “hand-held” (Baretto paragraph 42.)

“Device”

Regulation 110(4) specifies that the hand-held devices to which it applies are those (other than two-way radios) which perform an interactive communication function by transmitting and receiving data.

Regulation 110(6)(c) provides a non-exhaustive list of "interactive communication functions" such as: sending or receiving oral or written messages, sending or receiving facsimile documents, sending or receiving still or moving images, and providing access to the internet. As internet communication is included, the interaction does not therefore have to be with another person.

“Use”

A mobile telephone or device will be in use where it is making or receiving a call, or performing any other interactive communication function, whether with another person or not.

For the purposes of section 41D and Regulation 110 the “use” must be for an interactive communication function (Baretto paragraph 37.)  The legislation does not prohibit all uses of mobile telephones or other devices, just calls or other interactive communications if the phone or device is held at some stage during that process (Baretto paragraph 47.)

The phone or device does not need to be seized before a prosecution can be brought but it will be necessary for there to be sufficient evidence that it was being used for a call or interactive communication rather than any other purpose before a prosecution under section 41D(b) of the Road Traffic Act 1988 can proceed.

See Alternative Offences and Mobile phones and other driving offences where the evidence of for section 41D(b) is not sufficient.

In Baretto the High Court left open the question of whether the drafting, recording or reading of messages could form part of the “interactive communication” not just the “nanosecond of the transmission”.  By analogy, in the non-digital world an interactive communication by letter will include the writing and reading of the letter, not just the moment of posting (paragraph 46).

Stationary Vehicles

"Driving"

Whether or not a person is driving will be a matter of fact and degree in every case but there is some guidance to be found in the RTA and in case-law.

There is no specific definition of “drive” or “driving” in the RTA but section 192(1) provides that (except for the purposes of the offence of causing death by dangerous driving) “drive” and “driver” include anyone in another vehicle acting as steersman.

In R v MacDonagh (1974) 59 Cr App R 55 M was held not to have been driving by using his shoulder against the door pillar to push the car while having both feet on the road. The Court of Appeal said that:

  1. the essence of driving was the use of the driver’s controls in order to direct the movement of the car but additionally
  2. the word “driving” must be given its ordinary meaning

A vehicle may be being driven even when it is stationary. In Pinner v Everett (1977) 64 Cr App R 160 Lord Upjohn said (in respect of whether P was a “person driving or attempting to drive” at the time he was required to provide a roadside breath test) “It is not necessary that the vehicle should be in motion. A person is obviously driving although he may be in an almost interminable traffic block or waiting at a level crossing or at traffic lights or if he merely fills up with petrol; nor can it make any difference if in a traffic block he switches the engine off to prevent it overheating or to save petrol.”

In Edkins v Knowles (1973) 57 Cr App R 751 The Divisional Court summarised the case-law on the subject of when “driving” ceased:

  • The vehicle need not be moving. Once it has come to rest the operations of applying the handbrake, switching off the ignition etc. should be considered as part of the driving;
  • Has the motorist reached the end of their journey? Subject to the brief interval needed to carry out the operations referred to above then on reaching the end of the journey they should no longer be regarded as driving;
  • When the motorist stops during the journey the following questions will be relevant in deciding whether they are still driving or not:
    • Is the purpose of the stop connected with the driving?
    • How long was the stop? The longer it was the less likely it is that they can still be considered to be driving;
    • Did they get out?  If not, that is an indication (although not conclusive) that they are still driving.
  • When a motorist has been effectively prevented or dissuaded from driving then they are no longer to be considered as driving.

This means that an individual stopped at a traffic light or held up in traffic could be prosecuted for a mobile phone offence. However, prosecutors should bear in mind that the intention of the legislation is to promote road safety. They should ask whether the use of the phone or other device is in circumstances which might prejudice the driver’s ability to drive safely.

A person who uses their phone while stationary at traffic lights will be distracted and less able to move off safely when the light change.  Similar considerations would apply to a driver stationary in a traffic jam.

However, although the House of Lords in Pinner v Everett held that a person might still be driving even when they turned off the engine and got out of the car it is unlikely, other than in exceptional circumstances, to be appropriate to use section 41D to prosecute any person who in these circumstances made a phone call or accessed the internet. See Public Interest.

Defences

Regulation 110(5) provides that no offence is committed where a person makes a call to the emergency services on 999 or 112 in response to a genuine emergency, where it is unsafe or impracticable for them (or the provisional licence holder) to cease driving whilst the call is made.

Public Interest

In making their decisions on whether the public interest requires a prosecution, prosecutors should have regard to the purpose of the legislation, which is road safety.

Numerous academic studies from across the world have concluded that the using a hand-held mobile phone whilst driving significantly decreases driver performance (see for example https://www.sciencedirect.com/science/article/abs/pii/S0001457508000183). Accordingly, the public interest will weigh in favour of a prosecution for a mobile phone offence where the evidential test is met.

Alternative Offences

In cases where there is uncertainty regarding the nature of the device, or dispute about whether it is being used, the alternative offence under Section 41(D)(a) of the Road Traffic Act 1988 (driving in such a position that he cannot have proper control of the vehicle) may be preferred. In some circumstances the evidence may support a charge of careless or dangerous driving depending on the seriousness of the risk posed by the driving. Thirlwell LJ delivering the judgment in Baretto emphasised that drivers should not imagine the case gave them a green light to take films as they drove:

“… driving while filming events or taking photographs whether with a separate camera or with the camera on a phone, may be cogent evidence of careless driving, and possibly of dangerous driving. It is criminal conduct which may be prosecuted and on conviction may result in the imposition of penalties significantly more serious than those which flow from breach of the regulations. The same applies to any other use of the phone while driving.” .

Sentencing

The offence carries a maximum penalty of a Level 3 fine (or level 4 in the case of a goods vehicle or a vehicle adapted to carry more than eight passengers) and is endorsable with six penalty points. The court may at its discretion order the defendant to be disqualified.
 
Drivers may be issued with a fixed penalty notice rather than being taken to court in which case the penalty payable is £200 and the licence will be endorsed with six points. (The Road Traffic Offenders Act 1988 (Penalty Points) (Amendment) Order 2017 / The Fixed Penalty (Amendment) Order 2017).

Mobile phones and other driving offences

Where the evidence is capable of proving an offence of careless driving prosecutors should consider proceeding on that offence. Where the evidence is that the driving was so far below the required standard as to amount to dangerous driving prosecutors should normally charge that offence rather than an offence contrary to section 41D.

See sections on Dangerous Driving and Driving without Due Care and Attention under Road Traffic - Charging elsewhere in the Legal Guidance.

Further reading

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