Recent items in the media concerning the use of mobile phones while stuck in traffic and the use of satellite navigation (satnav) apps on mobile telephones in vehicles has revealed a degree of uncertainty and inconsistency over the law and its application. There have been reports that in some parts of the country, drivers are being convicted, or at least warned, for just touching the device while driving and the Crown Prosecution Service’s (CPS) advice admits that there has been debate about exactly what “use” means. In this article, Richard Smith aims to explain the legislation.
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 or other hand-held devices of a kind specified. This regulation was added by the Road Vehicles (Construction and Use) (Amendment) (No. 4) Regulations 2003 and extends to those supervising provisional licence holders while they are driving on the road. The regulation does not apply to devices built into the vehicle or secured in a cradle.
Devices secured in a cradle may be contentious, though, and there have also been reports of police officers telling drivers that the only legal position for an aftermarket satnav is in the bottom right corner of the windscreen. In fact, although that is probably the best place, there is no specific requirement in law. What is required is that the device, wherever positioned, should not obstruct the driver’s view of the road and that the power cable should not trail across the field of vision or the vehicle controls.
The Safe Driving for Life website has some good advice on positioning and using satnav and mobile phones.
Parliamentary intention and public interest
It is a feature of the adaptability of English law that there is an emphasis on case law, that is, how the law has been interpreted in court in the past, and that in making judgments, courts will often have to consider what Parliament’s intention was when it made the law. In this case, the CPS has stated that the intent is to promote road safety and by accepting that it will not normally be in the public interest to prosecute when the driver has safely pulled over and stopped before taking hold of the phone implies that it will be in the public interest to prosecute when any of those conditions do not exist. This is supported by the reference to academic research which suggests that using a hand-held mobile phone while driving is a serious distraction to the driver.
Which devices are covered
In addition to hand-held mobile telephones, the regulation also includes other hand-held devices of a kind specified. While the term “hand-held mobile telephone”, as opposed to “hand-held device of a kind specified”, is not defined, it would clearly be reasonable to assume its normal meaning. The other devices are defined as “a device, other than a two-way radio, which performs an interactive communication function by transmitting and receiving data”.
Specifically excluded are two-way radios using wireless telegraphy providing they do not operate on a frequency listed in the regulation. The frequencies used by CB radio are not listed in the regulation and it is apparently, therefore, not an offence to talk on one of these devices even if it is held in the hand to do so.
An “interactive communication function” is further explained to include:
sending or receiving oral (ie telephone calls) or written messages
sending or receiving facsimile documents
sending or receiving still or moving images
providing access to the internet.
This list is not exhaustive, so any other use that involves making or receiving a call or any other interactive communication function involving accessing any sort of data, whether with a person or not, would provide grounds for prosecution. This would certainly include using a satnav app. The particular use is not relevant to the offence; the prosecution must simply prove that the person was holding the device while it was used and the person was driving.
Illegal use may be regarded as holding the device while talking or listening, pressing buttons or the touchscreen or looking at the screen. This last having been established in a recent case where a conviction resulted after a driver picked up a phone that he was using as a satnav, which had fallen from its cradle, and glanced at the screen before placing the phone in the door pocket.
There appears to be a further uncertainty in that it is now established by case law that using a hand-held smartphone as a simple voice recorder is not an offence, presumably because that is not transmitting or receiving data. If so we are led to the conclusion that “interactive” means between the device and the supported communications network, not between the device and the user. By the same reasoning, logic suggests that scrolling through a library of music stored on the device would appear not to be an offence but doing the same with an internet streaming service would be!
The exact meaning of “while driving” may be a source of confusion to many ordinary motorists but should not be to professional drivers for it is established by case law to be exactly the same meaning as in the drivers’ hours legislation. Driving means being at the steering wheel for the purpose of controlling the vehicle with the engine running. It is the last bit that has caught out many drivers because, even though the vehicle may be stationary in a traffic jam with no possibility of moving, as long as the engine is running, the driver is still “driving”. If the driver in such a situation turns off the engine then it appears that no offence is committed by using a hand-held device, though that doesn’t mean that one cannot be alleged.
A possible grey area is introduced by the increasing number of vehicles with stop-start control that automatically shuts off the engine when the vehicle comes to a halt and certain other conditions are satisfied. When such a vehicle stops at, for example, a red traffic light, the engine will stop and therefore the driver is not driving according to the definition.
The regulation states that no offence is committed if the person, while driving, uses a hand-held mobile phone to make a call to the emergency services on 999 or 112 in response to a genuine emergency where it is unsafe or impractical to cease driving while the call is made. No indication is given as to what such a situation might be but we might suggest that notifying the police of an accident on the other carriageway of a motorway or debris in the carriageway might qualify, though whether it does would need to be tested in court.
Using a hand-held mobile phone while driving is an offence under s.41 of the Road Traffic Act 1988 and since 1 March 2017 has been penalised by a fixed penalty of £200 and six driving penalty points. If the case is dealt with in court, a maximum fine of £1000 may be imposed, rising to £2500 for the driver of an HGV. Magistrates also have the discretion to impose a disqualification from driving. In the case of an HGV driver, the Traffic Commissioner can also suspend the driver’s vocational entitlement for 21 days for a first offence, double that for a second offence, and so on.
As there is also a “causing or permitting” offence, the transport manager can be penalised too.
It seems that the specific offence is committed when all of the following conditions apply:
the driver is in the traffic stream
with the engine running
holding the device
using it for an interactive function.
Even where all of the conditions may not be satisfied (eg with a cradle-mounted or built-in device), there is the alternative of prosecution under Regulation 104 of the Road Vehicles (Construction and Use) Regulations 1986 (driving in such a position that he cannot have proper control of the vehicle) and this could equally apply to drinking, smoking or looking at a paper map. Where the actions of the driver result in danger or inconvenience to other road users, there is also the possibility of prosecution for careless or dangerous driving.
In the case of uncertainty like this, the only safe course to adopt is not to do it at all. Drivers should at least:
place any hand-held device firmly in a cradle upon entering the vehicle
complete any satnav programming or playlist selection before moving off
only initiate calls if absolutely necessary and then only when traffic conditions are suitable
use auto-answer if available
keep talk time to a minimum
never use the internet or text
if in doubt, don’t.
Transport managers should also ensure that similar appropriate advice is given to all drivers and check to see it is being followed.
The GOV.UK website has a succinct summary of the legal requirements for using a mobile phone.
Please note that in this article, the author has attempted to explain the legislation although it is not a legal opinion.