The BBC News on Friday 12 April 2019 announced the new regime in Thames Valley and Hampshire regarding the roll-out of new signage and mobile-phone-use detection to show when motorists are using their phones.

The technology referred to cannot distinguish between whether the driver or the passenger is using the mobile phone. As such the new technology and signage is not at current, a means of enforcing the law.

However, following this press release on 15 April 2019, BBC News Northwest broadcast a new warning regarding the implementation of a new policy by Cheshire Police to “crackdown„ on mobile phone using drivers.

The recent media exposure does raise a general public concern with regard to road safety and highlights a not so distant change to the legislation in respect of the use of a mobile phone whilst driving.

So, what is the law with regard to using a mobile phone whilst driving? And what sentence can I receive if found to be guilty of using a mobile phone whilst driving?

The Offence

The use of a hand-held mobile telephone or a hand-held device whilst driving a motorised vehicle on the road was prohibited on 1 December 2003 with the advent of the Road Vehicles (Construction and Use) (Amendment) (No 4) Regulations 2003.

These amendments inserted a new offence into the former regulations (the Road Vehicles (Construction and Use) Regulations 1986) after regulation 109. The new offence is set out in regulation 110:

(1) No person shall drive a motor vehicle on a road if he is using-

(a) a hand-held mobile telephone; or

(b) a hand-held device of a kind specified in paragraph (4).

(4) A device referred to in paragraphs (1)(b), (2)(b) and (3)(b) is a device, other than a two-way radio, which performs an interactive communication function by transmitting and receiving data.

As we can see from the above subsection 4, the offence is not only limited to the use of mobile phones but covers any hand-held device, which performs an interactive communication function by transmitting and receiving data.

You may ask, what is meant by an “interactive communication function„ and what devices would be included exactly?

Subsection (6) (c) of regulation 110 provides some explanation:

(c)“interactive communication function„ includes the following:

(i) sending or receiving oral or written messages;

(ii) sending or receiving facsimile documents;

(iii) sending or receiving still or moving images; and

(iv) providing access to the internet.

This leaves the hand-held device element very broadly defined and would include satnavs and potentially even fitbits and apple watches. Given the ever increasing supply of new technology, there is not at present an exhaustive list of what devices would be caught under such a definition.

It then leaves the question of what is meant by hand-held?

What is a hand-held mobile phone or hand-held device?

Subsection (6) (a) a mobile telephone or other device is to be treated as hand-held if it is, or must be, held at some point during the course of making or receiving a call or performing any other interactive communication function;

This definition would in theory rule out the concerns regarding fit-bits and apple-watches but does leave the list of devices once again, very broadly defined.

What constitutes use?

A phone or device will be in use where it is receiving or making a call, or performing any other interactive communication function. As set out above, this includes using the internet.

It is clear that the specific use is not defined as an element of the offence.

All that the prosecution need to prove is that it was hand-held and in use at the time when the person was driving a vehicle on a road.

What constitutes “driving"?

The test for driving boils down to whether or not the individual is in a substantial sense controlling the movement and direction of a vehicle.

Under current case law, a person may be regarded as “driving„ whilst the engine is running and the vehicle is stationary. This was found to be the case in a 2002 case of Planton v DPP.

It has also been found in a 1952 case of Jones v Prothero, that you can still be driving a stationery vehicle even when the engine is not running.

This would thereby prohibit the use of hand-held mobile phones or devices at traffic lights, stop signs and in scenarios whereby the engine to the vehicle automatically switches off when you stop.

What happens if I am caught using a mobile phone whilst driving?

The sentence for an offence of using a hand-held device whilst driving on a road increased on 1 March 2017. For offences committed after that date, the driver will receive six penalty points and a £200 fixed penalty notice.

If the driver contests the matter then it may go before a Court and a discretionary disqualification can be imposed in addition to the penalty notice.

In respect of goods vehicles or weight/ passenger adapted vehicles then a maximum level 4 financial penalty can be imposed (£2,500).

Are there any defences to using a mobile phone whilst driving?

Subsection 5 of the regulation provides a specific defence if whilst at the time of the alleged offence:

(a) the driver is using the telephone or other device to call the police, fire, ambulance or other emergency service on 112 or 999;

(b) the driver is acting in response to a genuine emergency; and

(c) it is unsafe or impracticable for him to cease driving in order to make the call.

This scenario permits the use of the phone for an emergency call where all three of the above criteria are satisfied.

Once again there is some ambiguity as to what constitutes a general emergency and what, if any proof can be provided to substantiate that it would be unsafe or impracticable for the driver to cease driving in order to make the call.

Some issues also remain with the prosecution in respect of whether or not there is sufficient proof to establish the use of a hand-held device whilst driving and whether or not an admission by the driver is or has been the main or only evidence to substantiate the use.

Other Offences

Dangerous Driving and Careless or Inconsiderate Driving are two types of offences that may be considered in relation to the offence of using a mobile phone or other hand-held device whilst driving.

Once it is established that there was the use of a mobile phone or hand-held device, the focus may then turn upon the consequences of that offence and the extent to which that use has caused the driver to become avoidably and dangerously distracted. Or in which the driver by using the hand-held device or mobile phone may be considered to be careless or inconsiderate driving.

These charges require other factors to be taken into account most of which would be concerned with the consequences of the driver’s actions and whether or not they led to any other offences such as breaches of the Highway Code or Road Traffic Accidents.

As mentioned in the BBC article the unfortunate case of R v Kroker in 2017 is one such case where the use of a mobile phone resulted in the death of 4 persons and serious injury of another.

This case concerned the actions of Mr Kroker who was driving an articulated lorry on 10 August 2016 and used his mobile phone in his left hand to scroll through what appeared to be music selections, he glanced up for 0.75 seconds before the collision, by which time it was too late to take avoiding action. This resulted in his lorry striking a number of vehicles and causing 4 deaths and serious injury.

Mr Kroker pleaded guilty to 4 counts of causing death by dangerous driving and one count of causing serious injury by dangerous driving.

The case emphasises the dangers that arise with using a mobile phone whilst driving and demonstrates the dangers of being distracted for a short period of time from the road.

How can we help?

Our Business Crime and Regulatory team have extensive experience in providing advice and guidance on the offences outlined above and various driving offences. If you have received any correspondence in respect of the above offences or are concerned in general about driving offences, please feel free to get in touch with a member of our team on 0345 872 6666.