What is 'Using a mobile phone'? - High Court Ruling
- AuthorMichael Pace
What is 'Using a mobile phone'. The High Court has finally dealt with this.
Regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986 prohibits a person from driving, or causing or permitting another to drive, a motor vehicle on the road while using a hand-held mobile telephone.
When reading the regulations it appears clear that in order to commit an offence under these specific regulations you have to be involved in 'an interactive communication' whilst holding the phone in your hand at the same time as you are driving.
You are driving if sitting in a queue of traffic and your engine is not running because of a stop/start function.
Crown prosecution guidance says you should not be prosecuted if parked at the side of the road and using your phone even if the engine is running.
However, since the regulations came out the police and the CPS as well as most magistrates have believed that it is an offence to simply hold a mobile phone in your hand whether it is in use or not. Many people have been prosecuted on that basis. The outcome being 6 points endorsed on their licence and a financial penalty.
In a blog which I wrote in April 2017, I stated my opinion that the words 'using a phone whilst involved in an interactive communication' were clear. They meant, making or receiving a phone call, sending or reading a text, and using the Internet to search'. I have always been of the opinion that selecting music to be played through your car music system or using the camera function were not offences under these regulations. Despite my opinion one of my clients was last year convicted of using his phone whilst adjusting his music. The High Court has now finally dealt with an Appeal against conviction where the driver was using his phone to video an incident as he drove past. The High court has stated that this does not come within the ambit of the offence because in this case the driver was not involved in an interactive communication.
This is the case of DPP v Barreto  EWHC 2044 (Admin). The court 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). An interactive communication function includes the following; sending or receiving oral or written messages, sending or receiving facsimile documents, sending or receiving still or moving images, providing access to the Internet'.
Videoing something [or taking a photo of something] falling short of then sending it to someone or adjusting your music, does not involve an interactive communication. Therefore it is not capable of being prosecuted under the 'Mobile Phone Regulations'.
It could be deemed as Careless Driving or Failing to be in proper control of a vehicle, but the are quite different offences. If you are prosecuted for a mobile phone offence, you should always seek advice from a solicitor who specialises in Motor Law.
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