N.B. – this article will be updated when the decision of Lady Justice Thirlwall is handed down on 18th April 2019.
The case of Ramsey Baretto is currently awaiting judgment from the High Court. He was caught filming a crash on his mobile phone. He was initially found guilty or driving whilst using a mobile phone, but the conviction was overturned at Isleworth Crown Court. It was held that the law only prevented the use of mobiles to speak or communicate whilst at the wheel. The DPP challenged the decision in the High Court yesterday, (15.4.19), submitting that the Judge has misinterpreted the regulation, and it was any use of a mobile phone, not just use for an “interactive communication.
I sat down to write this article after being almost run off the road by a woman driving whilst holding a cardboard box in her teeth. She was peering over the top of the box whilst she careered out into the road and directly at me.
Having recently had a number of ‘driving whilst using a mobile phone’ cases and each being fraught with confusion – mostly whether the driving whilst using was the correct offence – I thought an examination of the elements of the offence and what actually has to be proven would be useful.
The main area of confusion is certainly what is meant by “using” and how using can be proved. In many cases, it seems to me that a more appropriate charge might well be one of ‘not being in proper control’ of the vehicle, for all the instances where actual use cannot be proved. Doing all manner of things could constitute not being in proper control – holding a phone, holding a drink, doing your makeup, and I would suggest holding a box in your teeth would too.
This article takes a look at the elements of the offence and the likely interpretation the court will give to each of them.
Driving whilst using a mobile phone contrary to section 110 of the Road Vehicles (Construction and Use) Regulations 1986.
The penalty is 6 points on your licence and a standard fine of £200, with a maximum fine of up to £1000.
However simple and straightforward the offence initially appears, what actually constitutes each of the elements can be difficult to determine.
There are four elements of the offence:
Hand-held mobile device
s.110(6)(a) Road Vehicles (Construction and Use) Regulations 1986. “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”.
s.110(6)(c) Road Vehicles (Construction and Use) Regulations 1986.
“interactive communication function” includes the following:
Additionally, the exceptions to s.110 include “using the telephone or other device to call the police, fire, ambulance or other emergency service on 112 or 999”.
It is clear that the legislation is designed to prohibit active involvement in communication whilst driving.
R v Nader Eldarf (2018)
This was an appeal to the Crown Court. Though it is not precedent, the purpose of the legislation and the individual words which make up the offence were carefully considered. Put before another tribunal, this case should provide compelling grounds for adopting a similar approach in deciding future cases.
The facts of the case were:
The appellant replied that he was changing songs on his phone, he was not texting. The music was downloaded on to the phone, and the appellant had been changing the song with his thumb. The appellant submitted that the regulation did not restrict the use of an iPod, and he had been using his phone in an identical manner. He had not been using it for any interactive communication, and was therefore not “using” the phone as defined in the regulation.
It was held that the regulation is “manifestly driven by the function of the device which is dedicated to external interactive connectivity”. A further example being the “three statutory defences provided… are all explicitly predicated on a telephone call”. Accordingly, “where the appellant was agreed to be doing no more than operating an internal function of his mobile telephone … we were not satisfied that he was guilty of committing the specific offence prohibited by Regulation 110”.
Interactive communication is a broad category – it includes much more than making or receiving calls. Therefore, using any App that allows you communicate with other people is covered by the regulation.
Is taking a photograph an interactive communication? Is it the individual’s communication, or the device’s data communication? R v Nader Eldarf would suggest that the communication is between individuals, not the individual and the device. If this case were precedent, taking a photograph would not be an interactive communication, but taking a photograph within Snapchat for example may be, because the purpose is to communicate with others by taking and sending that photo.
If the vehicle is stationary but the engine is running, that might be enough to count as driving. Therefore, stopped at a junction, traffic lights or completely stopped in a traffic jam could be circumstances in which this offence could take place.
The key to determining whether the individual is driving is whether they are “in control” of the vehicle in the sense of controlling its movement.
Planton v DPP 
A person sitting in the driver’s seat of a stationary car was found to be driving because the engine was running.
DPP v Alderton 
The defendant was found to be driving even though the car was stationary and on a verge. The wheels were spinning and it was held that he was exercising control over the vehicle by use of the handbrake.
Not being in proper control
As mentioned earlier, the alternative charge could be one of not being in proper control of the vehicle. Just having your phone in your hand – even if not ‘using’ it – could satisfy the elements of this offence. Perhaps the key here would be how you came to the attention of the reporter, that is whether they saw the phone, or whether they saw how you were driving and they thought you were not in proper control. This offence carries fewer points than driving whilst using a mobile phone – it has a penalty of 3 points on your licence.
Technological advances to aid enforcement
An examination of this offence would not be complete without mention of the recent developments in technology aimed at increasing enforcement of this regulation. Two UK police forces are planning to install roadside equipment that will automatically detect when motorists are using mobile phones. Currently, this technology has a limited scope and is not being used as an “enforcement tool”.
The equipment will work by detecting 2G, 3G and 4G signals, and will register when someone is calling, texting or using data from within the vehicle. The sign will then flash at the side of the road. The sign will not activate when someone is using hands-free, but it cannot distinguish between who is using the phone. If your passenger is using a phone, the sign will activate. The plan is to use this equipment in more locations in the future. Perhaps with this technology in place it will be easier for the Police to determine mobile phone use and enforce the legislation.
The terms of the regulation are confusing because they are out-dated. The regulation describes the use of mobile telephones that carry out a fraction of the functions the average mobile phone is capable of today. The regulation was drafted in 2003, four years before the first I-phone was released.
Without any precedent on this matter the confusion surrounding the definitions and indeed the offence is likely to remain. It is clear that the purpose of this legislation was to prevent distracted driving. The emphasis on the mobile phone performing an interactive communication would suggest that simply holding the phone is insufficient to constitute an offence under this Regulation.
Whether actual use could be proved would ultimately depend upon what the defendant was seen to be doing, and by whom, and whether the phone or device was investigated after use. The only thing that is clear is that the offence is driving whilst using and thus use, however defined, must be proved.
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