6 Points for using a hand-held mobile while driving. Or maybe not...

[st13phil]

There was a case that made the news late last year regarding the bloke who filmed the aftermath of a serious crash on his mobile phone while driving past it, got 6 points and a fine under the mobile phone legislation, but then successfully appealed and the conviction was quashed. Well, the next stage, where the DPP appealed the overturning of the conviction has been heard in the High Court, and the DPP lost.

Putting to one side the obvious mischief committed by the driver (not being in proper control), after 16 years we now finally have a definition in law as to what "using" a hand-held phone for the purpose of the legislation actually means, and it's much narrower than many Police Forces have been claiming and achieving convictions on.

In confirming that the Crown Court was, indeed, right to quash the original conviction Lady Justice Thirlwall concluded that:

It would have been much better to have drafted legislation which was less cumbersome but its effect is clear. The legislation does not prohibit all use of a mobile phone held while driving. It prohibits driving while using a mobile phone or other device for calls and other interactive communication (and holding it at some stage during that process).

and that therefore, regarding the driver using the phone's camera while driving:

It follows that the activity of the respondent did not come within Regulation 110 and the Crown Court was right to quash the conviction.

So at last we have clarity that to successfully prosecute under the legislation the Police must provide evidence that the phone was being used for calls and/or other interactive communication, and that the driver was holding it at some stage during that process. So merely touching it, looking at it, holding it, are not the slam-dunk offences under the act that the Police have been relying upon (they may, of course, constitute another offence if the driver's ability to drive is demonstrably impaired).

Once again, the desire to make it "easy for the Police to take action" by way of shoddily drafted legislation has proven to be a failure.

My guess is that this will result in a fairly swift change to the law, with HMG going for a sledgehammer all-encompassing approach, but in the meantime perhaps the Police will have to do their job a bit more thoroughly and actually provide evidence that the mischief the law was intended to address - bad driving - was happening, rather than relying on a weak and flawed proxy.

Details of the case here.

 

[Bellow]

and that therefore, regarding the driver using the phone's camera while driving:So at last we have clarity that to successfully prosecute under the legislation the Police must provide evidence that the phone was being used for calls and/or other interactive communication,and that the driver was holding it at some stage during that process. So merely touching it, looking at it, holding it, are not the slam-dunk offences under the act that the Police have been relying upon (they may, of course, constitute another offence if the driver's ability to drive is demonstrably impaired).

Where would reading a (received) text - but with no intention of replying to it - fit within that definition? Interactive or passive (read only)?

 

[st13phil]

Where would reading a (received) text - but with no intention of replying to it - fit within that definition? Interactive or passive (read only)?

If it is hand-held to allow the reading of the text then it falls foul of the regulation. See 6(c)(i) at para 11 of the Judgement.

 

[Bellow]

Receiving and reading aren't necessarily the same thing.
My phone could receive the text as I walk toward the car, but I could wait until underway driving before reading it. The phone will show 'received at date and time' - which will be before I was driving. Loophole for someone?

 

[st13phil]

Loophole for someone?

Give it a go, and don’t forget to let us know how you get on

 

[st13phil]

On a more serious note, a chap I know is a London cabbie. His fare got in the back and told him where he wanted to go. Cabbie was uncertain of the address, so fare looked it up on his smartphone and with google maps displayed on the screen, passed the phone through to the cabbie to check the destination details (remember that this would be through a small letterbox slot in the safety divider behind the driver), in the same way he would have passed through a location map on paper in years gone by. All this happened while the vehicle was stationary on the rank, but with the engine running.

At this point, two plods appear and promptly give the cabbie a FPN for using a mobile phone while driving.

He's currently waiting for the case to go to court as he didn’t accept the kind offer to dispose of the allegation by taking up the FPN. I’m sure this appeal case will see him cleared, but it’s a good illustration of how the Police have been lazily abusing the legislation.

 

[putbinoot]

Did Jimmy Car the comdian not get off as he said he was using his as a audio recording device not as a phone.

 

[Bellow]

Give it a go, and don’t forget to let us know how you get on

Your cabbie already is!
Right there is the distinction between receiving and reading.

 

[SW18]

If it is hand-held to allow the reading of the text then it falls foul of the regulation. See 6(c)(i) at para 11 of the Judgement.

Receiving and reading aren't necessarily the same thing.
My phone could receive the text as I walk toward the car, but I could wait until underway driving before reading it. The phone will show 'received at date and time' - which will be before I was driving. Loophole for someone?

I’d venture to suggest that if your phone is in a holder in the approved position in the bottom-right corner of the windscreen when you read the text, all is ok. If your phone is in your lap or the centre console and you look down, pick it up, put it in your lap and read the text, it’s probably not ok.

What I see just about every time I am near an urban road is people with phones in their laps or in one hand, texting, with their eyes flicking up and down from the road to the phone as they type. I read the new case law to be that they are still committing an offence (difficult as that is for PC Dixon to prove).

 

[st13phil]

I read the new case law to be that they are still committing an offence (difficult as that is for PC Dixon to prove).

That's my take on it to (FWIW).

The important thing to remember is that a specific offence of mobile phone use was created because it would be easier for the Police to enforce than one of "Not in proper control" or "Driving without due care", etc. The underlying behaviour to be addressed was adequately covered by those offences and still is.

 

[ash59fifty-uk]

I often get worried when having to either change route or ‘search en route’ for a petrol station whilst using google maps, on my work tablet in a case which is large enough to slot into my old sat nav cradle attached to the windscreen.

My company is big on touching such devices when driving, fixed or not, because it is not a dedicated sat nav and being a comms device

Will they cough up for a dedicated Satnav for each of us? God no. I always generally have to touch the screen a couple of times per long journey, with it coming up with updates and notifying of a faster route etc

It’s a shame that google maps can’t be beaten, especially with my job as we sometimes don’t get exact addresses, but being google, their maps work exactly like the search engine. Can’t beat free speed camera notifications and visual warnings for free either! I would love GM in my comand rather than the integrated sat nav

 

[Bellow]

I’d venture to suggest that if your phone is in a holder in the approved position in the bottom-right corner of the windscreen when you read the text, all is ok. If your phone is in your lap or the centre console and you look down, pick it up, put it in your lap and read the text, it’s probably not ok.

It is just so vague - the distinction between receiving and reading. In my hypothetical example if I'd opened the text before I got in the car, then when driving picked up the phone and read the text message. The phone has already received the message, while driving I have done nothing in that process but reading the text would constitute an offence but I could have picked up anything and read what was written on it - a Mars bar, a shopping list, etc, etc, and that isn't an offence.

What I see just about every time I am near an urban road is people with phones in their laps or in one hand, texting, with their eyes flicking up and down from the road to the phone as they type. I read the new case law to be that they are still committing an offence (difficult as that is for PC Dixon to prove).

Day in day out I see them on an A road (with double whites for several miles) entering a blind bend doing the same. I think the most stupid thing was the law being framed such that is encourages the perpetrators to hide their phone and to be constantly looking down. Much better was them holding it up not losing sight of the road (as in most cases vehicle control isn't really jeopardised) and thus they are no worse than someone using a handsfree with the attendant potential lack or loss of focus on the driving.
I'm with st13phil in that it would be better to prosecute when the quality of driving suffers - handheld or handsfree.

 

[219]

I’d venture to suggest that if your phone is in a holder in the approved position in the bottom-right corner of the windscreen
....

Approved position ? Just where did you get that one from ?

Anything that intrudes by 40mm into the area swept by the wipers is illegal ( it would fail the MOT , just the same as windscreen damage in the same area ) .

The best place for a phone cradle is well away from the windscreen , ideally on the passenger side of the centre console , and use voice commands to make or answer calls .

 

[wivenhoe]

I would love GM in my comand rather than the integrated sat nav

The later Comand has Car Play & Android Auto via a USB cable so you can use GM’s. I prefer the Comand sat nav and have Waze in the background for camera alerts as you can no longer have the cameras as POI’s which is a shame

 

[SW18]

Approved position ? Just where did you get that one from ?

Anything that intrudes by 40mm into the area swept by the wipers is illegal ( it would fail the MOT , just the same as windscreen damage in the same area ) .

The best place for a phone cradle is well away from the windscreen , ideally on the passenger side of the centre console , and use voice commands to make or answer calls .

Yes, you are right of course; the guidance notes to the Road Vehicles Regulations 1986 do state the 40mm rule, and this could make it difficult to fit a phone cradle anywhere on the screen.

This article (along with others) was where I remembered reading about the lower-right corner: Police force guilty of misdirection by claiming satnavs must be in bottom right corner of a windscreen

But on re-reading it now I see that the Police Force in question accidentally said this was legal when technically it is not!

I’d still vote for the bottom-right corner though (if I used a phone satnav rather than Comand) as I reckon prosecution is most unlikely if the phone blocks the view only of the bonnet and not of any part of the road (easier for tall drivers then shorter ones).

 

[Alfie]

I think you'll find that said mobile phone offences are now coming to court as 'Driving without due care'...... ;-) Which is somewhat more serious for insurance purposes.

 

[st13phil]

^ Which at the end of the day is the mischief that the poorly-drafted mobile phone offence was supposed to address.

The evidential burden for Driving Without Due Care is also rather more rigorous than “I saw him touch a mobile phone”, and so requires rather more than a bald allegation that a proxy offence had occurred. Good.


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[Alfie]

I think you'll find that said mobile phone offences are now coming to court as 'Driving without due care'...... ;-)

^ Which at the end of the day is the mischief that the poorly-drafted mobile phone offence was supposed to address.

The evidential burden for Driving Without Due Care is also rather more rigorous than “I saw him touch a mobile phone”, and so requires rather more than a bald allegation that a proxy offence had occurred. Good.


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In my experience I find I can spot people on the phone by their driving. They tend to wander in their lane, are slow to respond to changes in traffic conditions. Especially those texting!

A Police officer tends to be very detailed in their account of the driving habits of the alledged offender. Where as the defendent simply says 'I wasnt using my phone'. They are unable to explain their erratic driving style. So instead of denying the erratic driving, they simply deny using the phone, not the offence as charged.

Talking of offences, and sorry to go a bit off-topic, saw someone last week who blew 121mg in a breath test. Legal limit is 35mg. The second breath test they blew 123mg. It was going up whilst at the station. Starting point- 12 weeks custody. Add in time of day, danger to pedestrians as they mounted the kerbs etc and it goes up!

 

[Deleted member 6183]

I used to use my phone handheld before it became illegal, only once did I lose concentration and it was while exiting a motorway. The irony was that the guy in the car behind took offence at my poor driving and tried to ram me off the road in retaliation.

Weirdo.