The use of mobile phones in vehicles has long been under the spotlight. It has been illegal to use a mobile phone whilst driving since 2003. We have seen penalties gradually increase since the introduction of the offence in 2003 when penalties were restricted to fine only. A revision of those penalties led to an increase in 2007 to motorists receiving 3 penalty points on their licence alongside a fine. More recently, in 2017, the government introduced an increased penalty of 6 penalty points and a fine.
For many, these penalties are still too low and there remains widespread calls to increase penalties to reflect the growing bed of research linking mobile phone interaction to involvement in many road traffic accidents.
Notwithstanding the penalties, there has long been a widespread consensus that the wording of the Road Vehicles (Construction and Use) (Amendment) (No 4) Regulations 2003, the legal authority that outlaws the use of a mobile phone when driving, is not fit for purpose.
Currently, it is only an offence to use a mobile phone whilst driving when the device is held in your hand at the time of use. The regulations define the offence as having been made out in the event that the phone is, whilst the driver is considered to be driving eth vehicle, ‘held at some point during the course of making or receiving a call or performing any other interactive function.’ The term ‘interactive communication function’ is then defined more clearly as activities including sending or receiving oral or written messages; sending or receiving facsimile documents; sending or receiving still or moving images; and providing access to the internet.
The obvious and rapid developments in technology since the introduction of those regulations means that the ‘functions’ of a mobile phone are now much wider ranging. It is difficult to argue that there is much, if any, difference between streaming music through the internet and playing it on your phone or playing music through a pre-downloaded library stored onto the device. There is, however, currently a difference in law. The first example involves an interactive communication function as defined by the original regulations. The second example does not. This has developed into a ‘loophole’ in the regulations as the technology and functions of the mobile phone have developed. A mobile phone no longer has to involve an interactive communication function to be considered distracting. Road safety campaigners argue that drivers take their minds off the road and become distracted whenever they are on the phone, even if it is hands-free. It is widely accepted and is now to be implemented in law that holding a held device, whilst driving, during the course of an interactive communication is no more distracting that holding hand held device, whilst driving, using a standalone function of device.
The recent High Court case of DPP v Baretto [2019] EWHC 2044 (Admin) has shone a spotlight on these inconsistencies. This case considered the issue of interactive communication in detail at a court of record. The principals discussed were nothing new in terms of theory or viewpoint on the flaws within the regulations, but was new in terms of it being given credence by the Admin Court in this level of detail. This case seems to have assisted the momentum of campaign groups and has caught the attention of the media to the extent that the Department for Transport has taken notice and launched a consultation that seeks to define the types of use which are to be banned when holding a mobile phone or ‘other hand-held interactive communication device’ whilst driving. Such types of use to be banned are likely to include using the device to record or view videos, take or view photographs, play music through a pre-downloaded platform on the device.
What remains clear now is that using your phone in any manner in your vehicle can be very distracting. Whether it be hand-held or hands free, whether it be interactive or otherwise, the evolution of mobile phones is such that they are a very different proposition and impact to road safety than they were when the offence was introduced 17 years ago.
If you find yourself at risk of prosecution involving any driving related offence our specialist motoring lawyers can advise you on the appropriate strategy and provide effective representation at each stage of the proceedings. You can contact our team on 0161 696 6250 .
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