MOBILE PHONE OFFENCE
Geoffrey Miller Solicitors are specialist Mobile Phone Offence Solicitors. Call our team of expert motoring solicitors for some free initial advice.
2019 Update To The Law On Mobile Phone Offence
The use of any hand held mobile phone or similar handheld interactive communication device while driving is prohibited and attracts 6 penalty points and a fine the level of which will depend on whether or not you were driving a vehicle intending to carry 8 or more passengers at the time of the mobile phone offence. The offence was first introduced pursuant to The Road Vehicles (Construction and Use) (Amendment) (No 4) Regulations 2003 that came into force on 1 December 2003. These Regulations 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.
Although the offence of driving whilst using a mobile phone can be made out even when the quality of your driving is not in issue, the legislation drafted to implement these laws has been widely criticised for ambiguity over what is and is not an offence.
A mobile phone can be used whilst driving in conjunction with a ‘hands free’ kit provided that the phone can be operated without holding it. Hands free kits that require you to take your hand off the wheel to operate it are not considered legal and you could be prosecuted even where you have been using a hands free device so be warned!
The law does not only apply to mobile phones, but also applies to any similar device that is hand held such as a tablet device and other computer equipment.
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Please note we only deal with motoring cases in England and Wales and are unable to assist with cases in Scotland or Northern Ireland.
2019 Development
Up until 31 July 2019, the only permissible defence to the above law was if a person uses a hand held mobile phone to contact emergency services (999 or 112) in a genuine emergency and when it is impracticable to stop. At all other times (even while sat in a traffic jam) an offence will be committed if using an interactive communication device while driving. This remains the only defence to the offence but we see many motorists who want to fight the prosecution they face because they do not consider the offence itself to have been made out. The main issues that are frequently open to interpretation being what is “use” and what is “interactive communication?”
The development in the law surrounding mobile phone use while driving follows a High Court appeal case published on 31 July 2019. The case involved a motorist seen by police filming an accident scene as he drove past
it. He was using the camera on his mobile phone to do so. The case centered around whether any mobile phone use was committing an offence or whether the use must involve use of the device for the purposes of interactive communication.
The High Court case followed another Crown Court decision (R v Nader Eldarf (21st and 23rd September 2018) where the interpretation of the phrase “interactive communication” was considered and found in a motorist’s favour where the reported use of the device was simply to change the track of an already downloaded playlist on a phone. In other words where the device was being used for a non-interactive purpose.
The High Court was asked to consider the following questions about the decision to allow the appeal in the lower court. This was so as to not only provide clarification for the individual motorist but so that there was much needed clarity for all over what constitutes an offence:
- Is using a hand-held mobile telephone or device for the purposes of Section 41D of the Act and Regulation 110 of the regulations restricted only to the use of an interactive communication function such as those set out in Regulation 110(6)(c) of the regulations?
- Is holding a mobile telephone or device whilst driving, in order to take a photograph or a film, capable of amounting to using a hand-held mobile telephone or device for the purposes of Section 41D of the Act and Regulation 110 of the regulations?
- Were we correct to conclude that the Respondent’s conduct did not amount to “using” a hand-held mobile telephone or device for the purposes of Section 41D of the Act and Regulation 110 of the regulations?”
The case highlighted the rapid development of technological advancement since the first introduction of the mobile phone offence, with this discussion being particularly interesting:
“DISCUSSION
Mobile Phone
23. The regulations contain no definition of “mobile phone”. At the time they came into force an increasing number of motorists were holding them while driving to make and receive telephone calls and to send and receive texts. It was to that mischief that the regulations were directed.
24. Most mobile phones also had games functions but it is not apparent that there was at that time any concern about people playing games on their phones while driving. Only a very few phones had cameras and the ability to connect to the internet.
25. 16 years later hand-held mobile phones, whether held in the hand or operated handsfree, can perform multiple electronic functions, including taking photographs, making calculations, downloading and using multiple applications in addition to facilitating many forms of communication using wireless and other networks to connect to the internet. They can also be used to make and receive calls and to send and receive texts.
26. The Oxford English Dictionary definition of mobile phone is “a telephone with access to a cellular radio system so it can be used over a wide area without a physical connection to a network.” The definition of “smartphone” is “a mobile phone that performs many of the functions of a computer, typically having a touchscreen interface, internet access and an operating system capable of running downloaded apps.” In ordinary conversation the description mobile phone includes a smartphone, like the one used in this case.
27. There is no reason of construction to attribute to the words mobile phone in the regulation a meaning other than the one in every day use. Mobile phone includes smartphone.”
The High Court went on to consider what “Use” can be construed as:
“Regulation 110 sets out the construction and use requirement:
“(1) No person shall drive a motor vehicle on a road if he is using – (a) a hand-held mobile telephone; or (b) a hand-held device of a kind specified in paragraph (4)”
32. In specifying the kind of device use of which is prohibited by the regulation paragraph 4 uses the language of definition: “(4) A device referred to in paragraph …(1)(b)… is a device, other than a two-way radio which performs an interactive communication function by transmitting and receiving data. ”
33. It is plain from the context that “performs” means “is being used/is used to perform”. As a matter of construction it is the use of a device for the performance of an interactive communication function which brings it within the definition of “a device referred to in paragraph (1)(b)” 34. Pagers, the use of which was common at the time the legislation was passed, come within the definition at paragraph 4. More recent devices e.g. iPads and other tablets can “perform an interactive communication function by transmitting and receiving data”. Many of them can be used to make telephone calls through web-based applications. Like many mobile phones, they have software which enables the performance of many functions other than and in addition to interactive communication functions. The use of the non-communication functions does not bring the device within the definition in paragraph (1)(b).
35. Hand-held devices which have no interactive communication function are not included in the definition. Thus, if while driving, a person takes photographs or films on an ordinary digital camera he is not in breach of the regulation. The same applies if he uses a hand-held Satnav. Such conduct may well be cogent evidence of careless or even dangerous driving for which the driver would be liable to prosecution.
36. The same applies to iPads and other tablets; if while driving, a person takes photographs on his iPad, he is not using the iPad to perform an interactive communication function. That is not use of a device within paragraph (1)(b).
37. Accordingly, the meaning of the word “using” in Section 41D and Regulation 110 is restricted in respect of hand-held devices to using the interactive communication function of the device”
Further debate centred around whether all mobile phone functions while driving were to be classed as an offence or whether the regulations limited the offence to being committed if a device was hand-held. The High Court was clear that the device must be held for the offence to be made out.
Hand-Held
The legislation does not prohibit all use of a mobile phone held while driving. It prohibits driving while using a mobile phone or other device for calls and other interactive communication (and holding it at some stage during that process).
But they went on to say that some activity when conducted when the device is held but when the interactive communication aspect does not happen simultaneously would still amount to an offence:
Whilst it is not necessary for the purposes of this case to decide this point there is an argument that sending and receiving messages includes the drafting or recording of the messages and the reading of them and not just the nanosecond of the transmitting or receipt of data. Without the data there is nothing to communicate. In the non-digital world interactive communication is not restricted to the posting of the letter, its sorting and its delivery. Without the writing and reading of the letter there is no communication. In the digital sphere each aspect of the drafting, sending and reading/viewing/replying is an intrinsic part of using a device which performs interactive communication as defined.
Despite this case being a landmark victory for Mr Barretto, the motorist who filmed from behind the wheel of his car, the High Court made it clear that this decision was not to mean that drivers using their devices for non-interactive purposes could do so without consequence and in her final conclusions Lady Justice Thirlwall warned:
“It should not be thought that this is a green light for people to make films as they drive. As I have already said, 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.”
~ Lady Justice Thirlwall
In our view this is likely to lead to the police choosing to prosecute for more serious offences where there is some question that there was interactive communication taking place.
Mobile Phone Defences
The main defence we have successfully presented in relation to the mobile phone offence is to raise evidence that our client was not “using” the phone for the purpose of communication.
So, for example, if you have your mobile phone in your hand but you are using the dictaphone function of the phone, this is not considered to be communicating with a third party and so should result in your acquittal being secured.
However, if you are typing or reading texts or talking on your phone, there are no technical loopholes that could assist in securing your acquittal.
If you were genuinely not using your phone, we are likely to suggest that you give evidence of your account of why the police stopped you and we would also make an application to your phone network for your phone records to be disclosed that can prove all incoming and outgoing calls being made on your phone at the time of being stopped by the police. It helps if you have no previous convictions if we are to run this kind of defence as your credibility as a witness will be key to whether the Magistrates accept your account, particularly over the word of an officer of the law.
Check out Jeanette Miller aka Miss Justice talking on BBC Breakfast about the mobile phone offence and penalties in August 2012.
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