Last reviewed 6 January 2020

Vikki Woodfine, Partner at DWF Law LLP, examines the use of mobile phones while driving a coach, minibus or HGV, and looks at the double punishment imposed on professional drivers.

Introduction

The law making it an offence to use a hand-held mobile phone whilst driving was introduced back in 2003. Since then, the penalty has been increased from 3 to 6 penalty points and the scope of the current legislation has shifted significantly.

We look at the impact of the current legislation, case law and the proposal to ban all use of mobile phones behind the wheel. We consider how it may impact commercial drivers and operators, and if caught using a handheld mobile phone the further repercussions from their local Traffic Commissioner.

The Current Law

On 1 December 2003, under an amendment to the Road Traffic Act 1998, it became illegal to drive in the UK while using a handheld mobile phone. The law currently says that an offence is committed where a driver uses a hand-held mobile phone device for "interactive telecommunication", when driving a vehicle. The term 'driving' includes being stationary in traffic.

The penalty if convicted is now the endorsement of six penalty points and a fine of £200 if dealt with under a fixed penalty, or up to £1000 if dealt with by a Court.

The current legislation states that an "interactive communication function", includes the following:

  1. sending or receiving oral or written messages;

  2. sending or receiving facsimile documents;

  3. sending or receiving still or moving images; and

  4. providing access to the internet…”

Smartphones and ‘Loophole’ in the Law

When the law was introduced in December 2003, smartphones were not readily available. The first iPhone was still four years away from being introduced to the UK market! The legislation was quite clearly aimed at phone calls and text messaging, which were the two key features on mobile devices at that time.

Over the last decade, we have moved into an era where smartphones have become our satnavs, camera, allow us to access the internet, update our social media, bank online, email and listen to music. The list goes on.

Since the perceived 'loophole' was highlighted in a recent High Court decision, there have been calls for all use of mobile phones behind the wheel to be made illegal. Not only is it proposed that the law will be updated to make using a mobile phone to take photographs or scroll through a play list illegal, it also proposes to outlaw the making of hands-free calls, which the Commons Transport Select Committee said carried "the same risks of collision".

It is anticipated that changes in the law around the use of mobile phones such as the taking of photographs will come in spring 2020 – although this is not confirmed. Whilst there are calls for all mobile phone use in vehicles to be banned there has been no confirmation as yet as to whether this will happen.

The Scope of the Law (DPP v Barreto)

It was recently highlighted in the case of DPP v Barreto [2019] EWHC 2044 that the legislation has not evolved alongside the evolution of the mobile phone.

Ramsey Barreto was accused of using a hand-held mobile phone whilst driving contrary the Road Traffic Act and Regulation 110 of the Construction and Use Regulations.

The case was brought after he was caught filming an accident on his mobile phone. Barreto was convicted in the Magistrates' Court but this was overturned on appeal in the Crown Court. Subsequently, the Prosecution appealed to the High Court.

The Prosecution's case was that the regulations prohibit all use of a mobile phone while driving. The defence put forward by Barreto was that the regulations are directed only to the use of phones and other devices for the purposes of interactive communication functions, and did not cover, as in that case, using a phone as a camera.

Ultimately, the High Court confirmed that the wording of the legislation surrounding the use of the mobile phone whilst driving (contained within 41D of the Road Traffic Act 1988 and Regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986) is ineffective where a driver has used a function of a smartphone which is not portrayed to be an "interactive telecommunication" feature.

The High Court said that each aspect of the drafting, sending and reading/viewing/replying in the digital world is an intrinsic part of using a device which performs an interactive communication as defined. Since the respondent was using a camera function, the provisions were not engaged in this case.

The appeal was dismissed.

What does this mean moving forward?

What the decision in Barreto does not mean is that drivers are free to use their hand-held mobile phone to film or take photographs whilst driving and the decision did not necessarily open a "loophole", despite some suggestion that it did.

Rather than viewing the High Court's judgement as a green light to contest mobile phone offences where a driver was not using an "interactive telecommunication function", this judgement is likely to act as a guidance note to the police and prosecutors to bring charges for alternative offences that already exist.

If the prosecution cannot prove that the driver used a hand-held mobile telephone for an “interactive communication function” alternative charges will be considered for offences such as driving a motor vehicle in a position which does not give proper control or a full view of the road and traffic ahead, Careless Driving or even Dangerous Driving.

Careless and Dangerous Driving

The difference between careless and dangerous driving is whether the standard of driving fell below or far below that of the careful and competent driver. Using a hand-held device whilst driving, whether it be a mobile phone or a purpose-built video camera, is likely to be considered an avoidable distraction and therefore at the very least careless driving and quite possibly dangerous driving.

When considering a commercial vehicle driver who has an articulated trailer attached to his tractor unit or is driving a coach or bus, the risk created by him becoming distracted, even for a short period, is greater than those when driving a small personal car. Accordingly, a professional driver operating a commercial vehicle who is found to have used a hand-held device will be considered more culpable and will likely be at a greater risk of being charged with dangerous driving than the vast majority of other road users.

Sentences for both careless and dangerous driving are entirely dependent upon the circumstances of each case, such as the length of use, whether any accident occurred and the outcome.

  • A careless driving conviction for a professional driver carries between 3 to 9 penalty points but could result in disqualification from driving.

  • Dangerous driving carries up to two years imprisonment, a minimum mandatory 12 month disqualification from driving and an extended retest. Any such conviction would means that a driver would almost certainly lose his job, as he could no longer carry out his role.

In summary, whilst some will view the Barreto judgement as a potential hole to wedge open future mobile phone prosecutions, in reality, it is likely to result in prosecutions for offences that could ultimately end up in a worse penalty than before.

The term ‘Handheld Device’

It is not only a mobile phone that can see the prosecution of a driver, it goes wider than that. The term “handheld device” covers anything that can be used for making or receiving voice calls or communicating; "interactive telecommunications".

This can therefore also include iPods, iPads and tablets. Drivers must be aware that communicating back to their employer — messaging / emailing about a delivery, for example — would still see them liable for the same prosecution as if they were speaking with a mobile phone.

If a driver of using a device for any other reason which is not an interactive communication function, for example, changing a track or taking photo then they could still be prosecuted and face an equal, if not more severe penalty.

Hands-free

It is not currently an offence under Regulation 110 to make a phone call in conjunction with hands-free system.

Most modern vehicles have such systems fitted as standard. Such use however ultimately remains a distraction and a driver engaged on a hands-free call is still open to a charge of careless or dangerous driving if their standard of driving falls below what is expected.

An operator would be poorly advised to encourage their drivers to make and receive calls using a hands-free system as a matter of routine. Any operator regularly expecting this of their drivers could ultimately face prosecution under health and safety laws in the event of an accident.

However, should, as is being called for, all use of mobile phones be banned? This question will undoubtedly continue to be raised as road safety continues to be a key topic.

Safety Concerns

It is claimed that using a using a device while driving is a safety risk to other road users. This risk is clearly magnified when driving a larger vehicle, such as an HGV or coach.

Reaction times for drivers using a phone are vastly affected. An undistracted driver normally has a reaction time of around one second, yet the following distractions have some very startling effects on reaction response times which have been known increase as follows:

  • Exceeding the drink drive limit — 13%

  • High on cannabis — 21%

  • Using a hands-free mobile phone — 27%

  • Texting — 37%

  • Speaking on a handheld mobile phone — 46%

Even otherwise careful drivers can be distracted by a call or text — and a split-second lapse in concentration could result in a crash. Department for Transport figures show that in 2017, 773 casualties occurred from reported accidents involving mobile telephones, causing 135 serious injuries and 43 deaths.

The statistics would arguably support an outright ban, but is a like for like conversation on a hands-free any more distracting than speaking to the passenger sat next to you? Research and some reports suggest it is not.

There are also the practicalities of enforcing such outright ban on all use of mobile phones to consider as well as the implications for businesses if all lines of communication with their driving workforce between stops is prevented.

Whilst recent cases and public campaigns have highlighted the issue of mobile phone use and there are calls for the law to be tightened up, the current law is arguably more than adequate when it is complied with, without further legislative reforms. Public pressure however may ultimately lead to such provisions being enacted.

The Traffic Commissioner

For the HGV and PSV driver, the risks do not end with the prosecution of an offence (note that given the penalty points involved for this offence, a driver convicted of two such offences within three years could potentially lose their driving licence for six months).

Guidance issued by the Senior Traffic Commissioner states that the starting point for the offence of commercial driver using a mobile phone while driving is the suspension of the driver’s vocational driving entitlement for a period of 4 weeks, to commence with immediate effect. Where a driver has been convicted of a previous mobile offence (including a non-commercial vehicle), the starting point for a first offence in a commercial vehicle will be an 8 week suspension. The relevant Senior Traffic Commissioner guidance is available here.

For a second mobile phone offence, the starting point will be a suspension of 16 weeks and for a third it will be a 26 week suspension.

A professional driver could conceivably lose their job if they are not able to drive due to a suspended vocational driving entitlement.

With regard to convictions of careless or dangerous driving, in lieu of a mobile phone offence, it would be entirely at the Traffic Commissioner's discretion as to the regulatory action taken against a driver's vocational licence.

Dependent on the circumstances of the incident and any aggravating or mitigating factors, a careless driving conviction for mobile phone use could well result in a higher starting point before the Traffic Commissioner and perhaps lead to a longer suspension.

A dangerous driving conviction for mobile phone use would almost certainly see a vocational licence revoked and judging by the guidelines issued by the Senior Traffic Commissioner, it would be a significant period of time before that licence would be restored.

Steps Going Forward

As a starting point, it is recommended that employer operators take the following steps:

  • inform drivers of the DVLA procedure whereby the DVLA notify the Office of the Traffic Commissioner when a professional driver is convicted of an endorsable offence;

  • reinforce the message of the wide ranging consequences of using a mobile phone while driving any vehicle;

  • consider a company policy that bans any in-vehicle mobile phone / handheld device use. Lead by example and ensure managers don’t make or receive calls while driving;

  • remind drivers, if they are provided with mobile devices for work, that they are primarily intended for emergency use and when pulled over; and

  • ensure that clear employment policies are in place that set out the disciplinary consequences of a driver using a mobile phone at the wheel.

This is an issue that should be placed at the very top of the agenda in transport businesses as it is simply unacceptable for professional drivers to be committing such offences. HGV drivers should be a shining light of professionalism to all other road users or forever tarnish the image of the industry.