Despite the threat of a £1,000 punishment and penalty points, many company car drivers are still using their mobile phones while driving, warns Sean Joyce, criminal lawyer specialising in road traffic and transport law at Stephensons Solicitors LLP.
He said: “Everyone now knows that the punishment for using a hand-held mobile telephone while driving increased in February 2007 to a maximum fine of £1,000 for car drivers and £2,500 for HGV and PSV drivers, along with three penalty points.
“Penalty points increase insurance premiums and research with online insurance providers has shown that six points can increase insurance premiums by as much as 44%. However 30% of company drivers still use mobile phones while driving on company business, according to headset provider, Jabra, and although most employers are aware of the law, 22% of them still do not have a policy on in-vehicle mobile phone use for company business. As a consequence we have seen the number of prosecutions for this type of offence soar in the last 12 months.”
This and other increased penalties under The Road Safety Act 2006 and the proliferation of speed cameras makes driving bans for business people on the move all the more likely.
For driver’s, a disqualification can mean temporary loss of livelihood and income, and for their employers it can mean loss of staff and vehicles for the duration of the suspension. This is costly for all involved and places pressure on employers to implement and enforce effective mobile phone and driving policies. Many employers have these in place but either don’t enforce them or don’t realise that they’re simply inadequate.
For example, the legal definition of ‘driving’ means that the new law can apply even if your vehicle is not in motion, such as when you’re stopped at traffic lights or heavy traffic or even pulled over at the road side with your engine still running. The only exceptions to the rule are 999 or 112 calls in a genuine emergency where it would be unsafe or impractical to stop. Although using two way radio equipment when driving is not a specific offence in itself, this also could lead to a prosecution for failing to have proper control of your vehicle.
Sean said: “Driving often represents the most risky work related activity for most businesses and their employees and the Department of Transport estimates that around a third of accidents on the road involve people making a work related journey. It’s said that you’re four times more likely to have an accident while on the phone, even when using a hands-free kit.”
The police now routinely obtain mobile phone records of drivers involved in serious road accidents. These records are often relied on in evidence and used to justify a serious charge of driving without due care and attention, or even dangerous driving. Use of mobile telephones at the time of an accident is regarded as an aggravating feature by the Courts in a similar way that drink driving is. It will increase the chances of a custodial sentence in serious cases.
“Employers don’t escape lightly either. If your working practices effectively mean that your drivers are made or encouraged to make or receive calls while driving, then, under existing laws, the employer could be prosecuted for a causing or permitting an offence.“
The requirement for employers to assess risks under health and safety law applies to employees driving at work and current health and safety at work legislation is an effective weapon available to prosecuting authorities with harsh penalties for employers and staff who cause serious injury or death in a work related accident. Offences of ‘causing’ or ‘permitting’ can also drag an employer into criminal proceedings due to the misdemeanours of their employees.
Sean added: “Employers must consider their drivers’ needs to make or receive calls and take steps to protect themselves in the event of prosecution. Indeed, employers are legally obliged to have a policy on mobile phone use if they are to avoid liability. Telling staff not to do it or even providing hands-free kits may not be sufficient.
“Although a business cannot be given penalty points in the same way that a driver can, it can still be heavily fined and convictions can lead to companies having to pay more for company vehicle insurance. Even worse, if there were evidence of a company actively encouraging mobile phone use by their drivers on the roads, then, in fatal road traffic cases, the prospect of corporate manslaughter charges against the company directors could arise.”
Currently, use of mobile phones in cases of causing death by dangerous driving is treated as a serious aggravating feature that can add to the length of a prison sentence. However, as the law stands now, this involves evidence that the driving fell far below the standard expected and that this was obviously so.
But there are now proposals to introduce a new offence of causing death by due care that will also carry a prison term. This would be a much easier offence to prove as the standard of driving need only fall slightly below the standard and need only be for a split second. This means that momentary lapses of concentration or the kind of accidental mistake that every driver is prone to, could lead to loss of licence and a prison term. Accidents involving mobile phones resulting in a fatality will almost always fall into this category of offence.
If an employer or one of its drivers has an accident while on their phone and kills another road user, they must be able to demonstrate from the outset that the organisation has effective health and safety and occupational road risk management policies in place. Otherwise the company could face significant problems, bringing both a serious criminal prosecution with threat of prison sentence for those responsible, and significant compensation claims from the victims.
Sean added: “The Courts don’t shy away from enforcing these laws. I recently represented a bus driver who couldn’t resist the temptation to read a text message. The Court threatened to disqualify him and we had to fight to keep his licence, despite a clean driving record and no suggestion of erratic driving.
“I regularly see owners of small businesses being prosecuted for motoring offences committed by employees. Employers don’t realise just how vulnerable they are from the actions of their staff until it’s too late. Take action to protect you and your business by introducing simple but effective written policies on mobile phone use for staff who drive.”
