Using or holding a phone while driving doesn't always earn you 6 points...and it's an atrocity for road safety
Summary
The current legislation against using a phone while driving is wholly unfit for purpose. Police should no longer have to prove that a driver was using the phone for an interactive communication function. Mobile phone legislation should be amended so that merely holding the phone or any other kind of distracting device attracts the same Fixed Penalty of £200 and 6 points. The exact use to which the phone or device was being put should no longer be a point to prove for the police and should not result in a differentiation of penalty. This will open the door to more efficient and robust enforcement by the police and upcoming automated static camera detection systems to root out the highly dangerous smartphone epidemic many a British driver seems to be affected by. A High Court judgement on this legislation has confirmed that the law is indeed inadequate, where a driver was prosecuted for using his phone to photograph the scene of a collision while driving was acquitted (DPP v Barreto).
Following up on my post about the speeding penalty system being disproportionately lenient on higher level speeders and unfair on those marginally over the limit, this post examines the current legislation surrounding the use of phones behind the wheel. In 2016, there were 35 fatal collisions where one of the drivers was distracted by their phone, on top of 137 people being seriously injured, according to the Department for Transport. Concerns over phone use behind the wheel were so widespread that the Government made the move to legislate for tougher penalties. The Fixed Penalty for using a handheld mobile phone or other handheld device was toughened to £200 and 6 penalty points in March 2017. Since then, the Government has praised this for a reduction in the number of detected offences. Another explanation for the significant drop in the number of detected offences is, of course, the fact that dedicated traffic police numbers have dropped by a shocking 24% since 2012. I'm sure the tougher penalties have also played an important role in acting as a proper deterrent, though, with new drivers facing their licence being revoked after a first mobile phone offence.Introduction
So using a phone while driving will net me a £200 fine and 6 points, right...?
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| Most people expect a £200 fine and 6 points if they're caught doing this |
Will using a phone while driving will get you a £200 fine and 6 points? The answer is: not necessarily. It is not surprising if you thought it would. The Government website incorrectly states: "It’s illegal to hold a phone or sat nav while driving or riding a motorcycle." (although it should be, as I am advocating!). Let me set out the - rather quirky - legal framework for this offence.
The use of a handheld mobile telephone or specified handheld device is prohibited by Regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986 as amended by Road Vehicles (Construction and Use) (Amendment) (No 4) Regulations 2003 & 2018. It defines "hand-held" as follows: "a mobile telephone or other 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". Section 41D(b) of the Road Traffic Act 1988 creates the offence of contravening Regulation 110.
Let us look a bit more closely at the definition of "use". According to the CPS legal guidance: "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." If we then look at the definition of "interactive communication function", regulation 110 states: "interactive communication function includes the following: (i)sending or receiving oral or written messages; (ii)sending or receiving facsimile documents; (iii)sending or receiving still or moving images; (iv)providing access to the internet."
There is another possible offence under Section 41D(1) of the RTA, namely contravening the requirement of being in a position to be in proper control of a vehicle at all times (Regulation 104). This can be committed in a variety of ways and is not limited to mobile phones or devices. Contraventions include reading a newspaper, eating or drinking, reading a map, putting on makeup, but usually also using a mobile phone. Another key difference is that the Fixed Penalty for an offence under Section 41D(1) is a £100 fine and 3 penalty points. Until March 2017, this was the same as an offence under Section 41D(2), however, as discussed above, that Fixed Penalty was raised to £200 and 6 penalty points.
Enough of the legal stuff...when will I get that terrifying £200 and 6 points?
With the legal framework set out, let's look at some examples.
Ex. 1: A driver is holding their phone to their right ear and is making a phone call while driving. They are thus "using a hand-held mobile telephone" as making a phone call is an "interactive communication function". Thus, the driver commits an offence under S.41D(b) and can receive a Fixed Penalty of £200 and 6 points.
Ex. 2: A driver is holding their phone in their right hand and is sending a WhatsApp message to someone. They are thus "using a hand-held mobile telephone" as sending or receiving oral or written messages (or providing access to the internet) is an "interactive communication function". Thus, the driver commits an offence under S.41D(b) and can receive a Fixed Penalty of £200 and 6 points.
Ex. 3: A driver is holding their phone in their right hand and is browsing Facebook. They are thus "using a hand-held mobile telephone" as providing access to the internet is an "interactive communication function". Thus, the driver commits an offence under S.41D(b) and can receive a Fixed Penalty of £200 and 6 points.
Ex. 4: A driver is holding their phone in their right hand and is recording a video. They are thus NOT "using a hand-held mobile telephone" as they are not performing any "interactive communication function" - they are not SENDING or RECEIVING any moving images, merely recording them. However, the driver is still likely to have committed an offence under S.41D(a) (not in proper control of the vehicle) and can receive a Fixed Penalty of £100 and 3 points.
Ex. 5: A driver is holding their phone in their right hand in front of their mouth. They are recording an audio message using a dictaphone function on the phone. They are thus NOT "using a hand-held mobile telephone" as they are not performing any "interactive communication function" - they are not SENDING or RECEIVING any oral message, merely recording one. However, the driver is still likely to have committed an offence under S.41D(a) (not in proper control of the vehicle) and can receive a Fixed Penalty of £100 and 3 points. Check this court case, where the defendant was incorrectly charged and thus found not guilty, facing no penalty at all.
Ex. 6: A driver is holding their phone in their left hand in front of their face. They are touching the phone to change their pre-downloaded music which is playing. They are NOT "using a hand-held mobile telephone" as they are not performing any "interactive communication function" - they are not SENDING or RECEIVING any message or data from the internet. However, the driver is still likely to have committed an offence under S.41D(a) (not in proper control of the vehicle) and can receive a Fixed Penalty of £100 and 3 points. Check this court case, where the defendant was incorrectly charged and thus found not guilty, facing no penalty at all.
Ex. 6: A driver is holding their phone in their left hand in front of their face. They are touching the phone to change their pre-downloaded music which is playing. They are NOT "using a hand-held mobile telephone" as they are not performing any "interactive communication function" - they are not SENDING or RECEIVING any message or data from the internet. However, the driver is still likely to have committed an offence under S.41D(a) (not in proper control of the vehicle) and can receive a Fixed Penalty of £100 and 3 points. Check this court case, where the defendant was incorrectly charged and thus found not guilty, facing no penalty at all.
The offence and thus the penalty depends on how you are (proved to be) using your phone!
The implications of this are an atrocity for the police and some traffic police Twitter accounts have already aired their frustrations.
Successful convictions for S.41D(b) (use of mobile phone) offences currently rely a lot on drivers admitting what they were using their phone for during a roadside interview after being stopped by police. Thus, the police put cases open to easy challenge if they do not properly interview drivers about the offence. They are thus usually unable to send postal notices of intended prosecution for using a mobile phone. The defendant could simply easily claim they were using the phone for a non-interactive communication function and get away with it completely, or with a lesser penalty (see example 5 above). Moreover, if the driver knows what to tell the police during a roadside interview, they may well get away with a lesser fixed penalty of £100 and 3 points rather than the intended £200 and 6 points. It would be incredibly impractical for the police to have to seize all phones from offenders to examine them for evidence. This clearly creates an undesirable situation where penalties depend on how the phone was being used at the time. Clearly, in the above examples, drivers are all equally distracted and was most likely the intention of legislators for them all to fall under a contravention of Regulation 110 when it was written in 2003 - 4 years before the first iPhone was released!
Furthermore, the current regulation 110 places an unnecessary burden on the police and prosecutors and is a major obstacle to automated camera enforcement of mobile phone driving offences, as roadside interviews cannot be done by those cameras. These methods of enforcement already exist and are already used in Australia, where police also set up long-range camera sites to easily snare any passing drivers who are using a phone at the wheel. With the currently lacking legislation, this would be virtually impossible to do in the UK as the use to which the phone was being put would be impossible to prove. With an ever-declining number of traffic police officers, automated enforcement of mobile phone offences through camera sites is a cost-effective and attractive way for the Government to crack down on the devastating consequences committing this offence can have.
Successful convictions for S.41D(b) (use of mobile phone) offences currently rely a lot on drivers admitting what they were using their phone for during a roadside interview after being stopped by police. Thus, the police put cases open to easy challenge if they do not properly interview drivers about the offence. They are thus usually unable to send postal notices of intended prosecution for using a mobile phone. The defendant could simply easily claim they were using the phone for a non-interactive communication function and get away with it completely, or with a lesser penalty (see example 5 above). Moreover, if the driver knows what to tell the police during a roadside interview, they may well get away with a lesser fixed penalty of £100 and 3 points rather than the intended £200 and 6 points. It would be incredibly impractical for the police to have to seize all phones from offenders to examine them for evidence. This clearly creates an undesirable situation where penalties depend on how the phone was being used at the time. Clearly, in the above examples, drivers are all equally distracted and was most likely the intention of legislators for them all to fall under a contravention of Regulation 110 when it was written in 2003 - 4 years before the first iPhone was released!
Furthermore, the current regulation 110 places an unnecessary burden on the police and prosecutors and is a major obstacle to automated camera enforcement of mobile phone driving offences, as roadside interviews cannot be done by those cameras. These methods of enforcement already exist and are already used in Australia, where police also set up long-range camera sites to easily snare any passing drivers who are using a phone at the wheel. With the currently lacking legislation, this would be virtually impossible to do in the UK as the use to which the phone was being put would be impossible to prove. With an ever-declining number of traffic police officers, automated enforcement of mobile phone offences through camera sites is a cost-effective and attractive way for the Government to crack down on the devastating consequences committing this offence can have.
The solution? You guessed it... better legislation!
The problem and the solution lie firmly at the door of legislators. Any use of a mobile phone is equally distracting in this day and age - in fact, I would argue that watching a pre-downloaded episode of Bodyguard on your phone can be more distracting than making a quick phone call, yet the penalty for the former is less! Legislators in 2003 clearly did not take into account the rapid technological advancements and the introduction of the smartphone. Back at the time, phones could really only be used to place phone calls or use SMS.
The Department for Transport and Government should amend Regulation 110 as follows. Firstly, the mere act of holding the phone or device should be outlawed, not the "use" of it. The regulation should furthermore clarify that "holding" includes acts like balancing the phone on one's lap, placing it between the ear and the shoulder etc. This will remove the entire 'use' factor of the offence and point to prove for the police. Thereby, it will become an offence to hold a mobile phone or device.
The regulation should also make it clear that it is immaterial if the mobile phone or device is used for an interactive communication function for the commission of the offence. The mobile phone or device is to be treated as such if it is merely capable of any interactive communication function. This updated regulation would cover a driver holding a smartphone. It would also cover holding tablets, smartwatches and devices like iPod Touches, which are not necessarily capable of telephone functions but are still able to connect to the internet. Furthermore, the definition of 'device' should be widened so that all portable devices with a screen, not necessarily capable of interactive communication functions, are also included. This would then also cover devices like portable game devices, older sat-navs and any other ingenious device not covered by the other definitions capable of distracting the driver with a screen.
Using my limited ability to write and amend legislation, this would result in the following replacing the current Regulation 110 (changed or added text is in italics):
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110.—(1) No person shall drive a motor vehicle on a road if he is holding—
(a)a mobile telephone; or
(b)a device of a kind specified in paragraph (4).
(2) No person shall cause or permit any other person to drive a motor vehicle on a road while that other person is holding—
(a)a mobile telephone; or
(b)a device of a kind specified in paragraph (4).
(3) No person shall supervise a holder of a provisional licence if the person supervising is holding—
(a)a mobile telephone; or
(b)a device of a kind specified in paragraph (4),
at a time when the provisional licence holder is driving a motor vehicle on a road.
(4) A device referred to in paragraphs (1)(b), (2)(b) and (3)(b) is—
(a)a device, other than a two-way radio, which is capable of performing an interactive communication function by transmitting or receiving data; or
(b)a device which is capable of processing data or multimedia; or
(c)a device which has a screen or other interface used to interact with a user.
(c)a device which has a screen or other interface used to interact with a user.
(5) A person does not contravene a provision of this regulation if, at the time of the alleged contravention—
(a)he is holding the telephone or other device to call the police, fire, ambulance or other emergency service on 112 or 999;
(b)he is acting in response to a genuine emergency; and
(c)it is unsafe or impracticable for him to cease driving in order to make the call (or, in the case of an alleged contravention of paragraph (3)(b), for the provisional licence holder to cease driving while the call was being made).
(5A) A person does not contravene a provision of this regulation if, at the time of the alleged contravention—
(a)that person is holding the mobile telephone or other device only to perform a remote controlled parking function of the motor vehicle; and
(b)that mobile telephone or other device only enables the motor vehicle to move where the following conditions are satisfied—
(i)there is continuous activation of the remote control application of the telephone or device by the driver;
(ii)the signal between the motor vehicle and the telephone or the motor vehicle and the device, as appropriate, is maintained; and
(iii)the distance between the motor vehicle and the telephone or the motor vehicle and the device, as appropriate, is not more than 6 metres.
(5A) A person does not contravene a provision of this regulation if, at the time of the alleged contravention—
(a)that person is holding the mobile telephone or other device only to perform a remote controlled parking function of the motor vehicle; and
(b)that mobile telephone or other device only enables the motor vehicle to move where the following conditions are satisfied—
(i)there is continuous activation of the remote control application of the telephone or device by the driver;
(ii)the signal between the motor vehicle and the telephone or the motor vehicle and the device, as appropriate, is maintained; and
(iii)the distance between the motor vehicle and the telephone or the motor vehicle and the device, as appropriate, is not more than 6 metres.
(6) For the purposes of this regulation—
(a)"holding" includes held by, or resting on, any part of the person's body, but does not include held in a pocket of the person's clothing or in a pouch worn by the person;
(b)a person supervises the holder of a provisional licence if he does so pursuant to a condition imposed on that licence holder prescribed under section 97(3)(a) of the Road Traffic Act 1988 (grant of provisional licence);
(c)“interactive communication function” includes the following:
(i)sending or receiving oral or written messages;
(ii)sending or receiving facsimile documents;
(iii)sending or receiving still or moving images; and
(iv)providing access to the internet;
(d)“two-way radio” means any wireless telegraphy apparatus which is designed or adapted—
(i)for the purpose of transmitting and receiving spoken messages; and
(ii)to operate on any frequency other than 880 MHz to 915 MHz, 925 MHz to 960 MHz, 1710 MHz to 1785 MHz, 1805 MHz to 1880 MHz, 1900 MHz to 1980 MHz or 2110 MHz to 2170 MHz; and
(e)“wireless telegraphy” has the same meaning as in section 19(1) of the Wireless Telegraphy Act 1949(2).”
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It would also involve changing the current Section 41D of the Road Traffic Act to the following:
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41D Breach of requirements as to control of vehicle, mobile telephones etc.
A person who contravenes or fails to comply with a construction and use requirement—
(a)as to not driving a motor vehicle in a position which does not give proper control or a full view of the road and traffic ahead, or not causing or permitting the driving of a motor vehicle by another person in such a position, or
(b)as to not driving or supervising the driving of a motor vehicle while holding a mobile telephone or other device, or not causing or permitting the driving of a motor vehicle by another person holding such a telephone or other device,
is guilty of an offence.
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It would also involve changing the current Section 41D of the Road Traffic Act to the following:
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41D Breach of requirements as to control of vehicle, mobile telephones etc.
A person who contravenes or fails to comply with a construction and use requirement—
(a)as to not driving a motor vehicle in a position which does not give proper control or a full view of the road and traffic ahead, or not causing or permitting the driving of a motor vehicle by another person in such a position, or
(b)as to not driving or supervising the driving of a motor vehicle while holding a mobile telephone or other device, or not causing or permitting the driving of a motor vehicle by another person holding such a telephone or other device,
is guilty of an offence.
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So there you have it, Department for Transport. I've written it all for you - all you need to do now is amend the existing legislation! Needless to say, with the legislation proposed above, all drivers from the previous examples would face the same fixed penalty of £200 and 6 penalty points.
I further believe the legislation should be further updated to cover the touching of smartphones in a cradle in some cases where it is not used as to assist the driver (such as when the driver is texting in the cradle). The legislation would furthermore have to take into account the operational requirements of emergency workers and the modernisation of their communication equipment. An exemption for emergency workers should be considered. I will leave the drafting of the legislation for these additional requirements as an exercise to the reader and more importantly the Department for Transport. And while I'm on the subject, the sentencing council should change the starting point for this offence to a Band B fine to reflect the higher £200 fixed penalty.
Comments, thoughts, praise and criticism are all very welcome and I will happily engage in polite discussion if any interesting points are raised. See you in the next post!
-Albo1125
UPDATE 14/03/2019
All the above has now been confirmed by the Crown Court - again! A driver who was charged with using a handheld mobile phone while driving, because he held and touched his phone to change songs, was acquitted after a successful appeal at Crown Court. The law is STILL shockingly inadequate, police are being forced to jump through many hoops to secure a successful conviction and automated enforcement CANNOT happen in the current situation. Many drivers are still getting away with using their phone while driving. The full latest case transcript can be found here (NADER ELDARF v THE QUEEN): https://www.pattersonlaw.co.uk/not-all-use-of-a-mobile-while-driving-is-illegal-we-have-a-crown-court-judgement-to-help-clarify-the-law/
This really needs to change. Please consider sharing this post and writing to your MP to raise the major concerns. If a solicitor firm says "the current law with regard to Mobile Phone use while driving is not particularly well constructed" you know it's simply inadequate.
Huge if true! Once the full result becomes available I will update accordingly. Questions, of course, do arise if the appeal is successful. Am I right in concluding that, in essence, witnessing someone holding a mobile phone would be enough to prove the offence? What about an iPod Touch/iPad without a sim card? The best possible outcome in my eyes would be that the offence applies to any 'use' of a mobile phone or device CAPABLE of an interactive communication function (including internet connection i.e. only wifi). I wonder if 'holding' would suffice to prove this if so... Essentially what I am advocating in this blog post. I'm awaiting a further update and will update this post once I get it.
UPDATE 01/11/2019
Government response communicates their intent to criminalise all use of mobile phones. Proposals for change to be put forward by Spring 2020. Full response can be found here: https://publications.parliament.uk/pa/cm201920/cmselect/cmtrans/237/237.pdf
UPDATE 13/04/2019
Progress on the horizon? "There was an appeal last week regards this defence in the High Court as it is a misinterpretation of the legislation and CPS guidance...This was the case in question from last week, still waiting for the result (don't know why) but if it went against the CPS they will just rewrite the legislation to remove the existing misinterpretation issues. Consensus was though that the appeal should be successful. The case appealed was a driver photographing an RTC scene with their phone." (West Midlands Police Road Harm Reduction Team, https://twitter.com/WMPRHRT/status/1117034412292673536)Huge if true! Once the full result becomes available I will update accordingly. Questions, of course, do arise if the appeal is successful. Am I right in concluding that, in essence, witnessing someone holding a mobile phone would be enough to prove the offence? What about an iPod Touch/iPad without a sim card? The best possible outcome in my eyes would be that the offence applies to any 'use' of a mobile phone or device CAPABLE of an interactive communication function (including internet connection i.e. only wifi). I wonder if 'holding' would suffice to prove this if so... Essentially what I am advocating in this blog post. I'm awaiting a further update and will update this post once I get it.
UPDATE 31/07/2019
The CPS had their appeal dismissed by the High Court. As the law now stands, the police must prove that the handheld phone or device was being used for an interactive communication function - a very hard task. I imagine many forces will opt for a simpler improper control charge until the law is FINALLY changed. As the ruling was made by the High Court, all lower courts are now bound by this ruling, which may result in many existing cases being thrown out. The police must immediately familiarise themselves with this legislation so no wrongful charges are brought, leading to an acquittal.
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