Road Traffic Offences: Mobile phones
- Parliamentary Intention
- Alternative Offences
- Public Interest
- Mobile Phone Offences and other driving 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. 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.
Regulation 110 (5) provides that the regulation is not breached 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 him (or the provisional licence holder) to cease driving whilst the call is made.
It is an offence under section 41 D(b) of the Road Traffic Act 1988 to contravene Regulation 110. The penalty imposed will depend upon the type of vehicle driven.
Terms of note:
- Hand-held / Hand-held mobile phone
Regulation 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 term "mobile phone" will cover cell-phones and smart phones.
- Hand-held device
Regulation 110 (4) describes a hand-held device as any other device which performs an interactive communication function by transmitting and receiving data, other than a two way radio using specific frequencies. 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. Communication with the internet is included - the interaction does not therefore have to with another person.
There has been some debate about what use means.
A phone 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.
The particular use to which the mobile phone must be put is not defined as an element of the offence. The prosecution must merely prove that the phone or the other device was hand held by the person at some point during its use at a time when the person was driving a vehicle on a road.
It therefore follows that the phone / device does not need to be seized before a prosecution can be brought.
Under existing case law a person may still be driving whilst the engine is running and the vehicle is stationary. This means that an individual stopped at a traffic light could be prosecuted for a mobile phone offence. The intention of the legislation is to promote road safety and so it will not normally be in the public interest to prosecute this offence if the driver has safely pulled over and stopped before taking hold of the phone.
The offence will apply to drivers speaking or listening to a phone call, using a device interactively for accessing any sort of data (which would include the internet), sending or receiving text messages or other images if it was held in the driver's hand during at least part of the period of its operation.
In cases where there is doubt about 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, contravening Regulation 104 (driving in such a position that he cannot have proper control of the vehicle) may be preferred.
Academic research suggests that using a hand held mobile phone, whilst driving, is a serious distraction to the driver. Accordingly, the public interest will weigh in favour of a prosecution for a mobile phone offence provided that the evidential test relevant to the offence is met.
For offences committed on or after 1 March 2017, penalties for using a hand-held mobile phone or device whilst driving have increased from three to six penalty points and from £100 to £200 when driver is issued with a fixed penalty notice.
The Road Traffic Offenders Act 1988 (Penalty Points) (Amendment) Order 2017 amends Part I of Schedule 2 to the 1988 Act to increase the number of penalty points attributable to the offence under section 41D(b) of the Road Traffic Act 1988 (contravening or failing to comply with a construction and use requirement as to the the use of hand-held mobile telephones, or other hand-held interactive devices, while driving) from three to six penalty points.
The Fixed Penalty (Amendment) Order 2017 amends the Fixed Penalty Order 2000, which prescribes fixed penalty amounts for fixed penalty offences. The effect is to increase the fixed penalty for this offence from £100 to £200.
In the event that the matter comes before a court, a discretionary disqualification can also be imposed.
In any offence under s.41D of the Road Traffic Act 1988 is committed with a goods vehicle adapted to carry more than eight passengers a maximum level 4 financial penalty can be imposed.
The following uses of a mobile phone are likely to be regarded as "dangerous driving":
- using a hand-held mobile phone or other hand-held electronic equipment whether as a phone or to compose or read text messages when the driver avoidably and dangerously distracted by that use; R v Browning (2001) EWCA Crim 1831, R v Payne  EWCA Crim 157;
- driving whilst unavoidably and dangerously distracted such as whilst reading a newspaper/map, talking to and looking at a passenger, selecting and lighting a cigarette or by adjusting controls of electronic equipment such as a radio, hands-free mobile phone or satellite navigation equipment.
Using a hand-held mobile phone or other hand-held electronic equipment when the driver was avoidably and dangerously distracted by that use will also be considered by the courts as an example of careless or inconsiderate driving. However, if this is the only relevant aspect of the case, a section 41D(b) charge will be more appropriate.