Road Traffic Offences: Mobile phones

Revised 25 April 2018|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 operate a hand-held mobile phone while driving. These rules also apply to those supervising a learner driver.

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.

It is an offence under Section 41D(b) of the Road Traffic Act 1988 to contravene Regulation 110. The penalty imposed will depend upon the type of vehicle driven.

Key Definitions

“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) defines a hand-held device as a device which performs an interactive communication function by transmitting and receiving data. This does not include a two-way radio using specific frequencies as set out in Regulation 110 (6)(d). 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 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 or device does not need to be seized before a prosecution can be brought.

Stationary Vehicles

Under existing case law, a person may be regarded as 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.

The test for “driving” is a combination of whether an individual is in a substantial sense controlling the movement and direction of a vehicle and the general meaning of the word “drive”.

In Planton v DPP [2002] R.T.R. 9, DC, the Defendant was in a stationary vehicle with the lights on and engine running. The Court held that he had been “driving” for the purposes of the legislation, as the stationary state of a vehicle is not the sole determinative factor as to whether it is being driven. The Defendant’s vehicle was in a place that he could not provide any explanation for how it got there, other than that the car had been driven there by him.

A person may be regarded as driving a stationary vehicle, even when the engine is not running – Jones v Prothero [1952] 1 All ER 434.

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 him (or the provisional licence holder) to cease driving whilst the call is made.

Public interest

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.

However, if the vehicle is stationary and parked safely at the time the mobile phone is used, it will not normally be in the public interest to prosecute the offence.  Whether a vehicle is regarded as being driven or parked safely will depend on the circumstances of the case (see above).

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.

Sentencing

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/The Fixed Penalty (Amendment) Order 2017)

In the event that the matter comes before a Court, a discretionary disqualification can also be imposed.

If any offence under Section 41D of the Road Traffic Act 1988 is committed with a goods vehicle or a vehicle adapted to carry more than eight passengers, a maximum level 4 financial penalty can be imposed.

Mobile phones and other driving offences

Dangerous Driving

Using a hand-held mobile phone or other hand-held electronic equipment whether as a phone, satellite navigation or to compose or read text messages when the driver was avoidably and dangerously distracted by that use; R v Browning (2001) EWCA Crim 1831, R v Payne [2007] EWCA Crim 157.

Careless or Inconsiderate Driving

Using a hand-held mobile phone or other hand-held electronic equipment when the driver was avoidably (but not dangerously) distracted by that use may be considered to be careless or inconsiderate driving. If the evidence is solely of the use of a mobile phone or other hand-held electronic equipment, in the absence of other factors justifying a charge of careless or inconsiderate driving, the public interest is likely to be satisfied by a Section 41D(b) charge.

Further reading