Tuesday, 2 March 2010

Mobile phones and driving: just what is "using"

Regrettably, a lot of legislation is not always entirely straightforward to interpret (or "construe").  The Road Vehicles (Construction and Use) Regulations 1986 Rule 110 seems to give rise to such problems.  Reg. 110(1) states - "No person shall drive a motor vehicle on a road if he is using (a) a hand-held mobile telephone; or (b)..

For present purposes (b) is not relevant.

The Regulations do not contain a definition of "using".  It is clear enough that if the driver is making or receiving a call with the phone in his hand then that is "using."  That must be so on any view of the meaning of the word "using" though such "using" to make an emergency call (112 or 999) would not be an offence where Reg. 110(5) applies.

Reg. 110(6) states - "(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 ..."  That seems to be a fairly common-sense description of what is meant by "hand-held".

If a driver merely picks up a mobile telephone but is not making a call or texting is that to be construed as "using"?  It could be argued that this was "using" given that the "mischief" at which Reg. 110 is aimed is that of drivers having only one hand on the vehicle steering wheel and thereby not having proper control.  A potentially dangerous state of affairs.  However, in one Scottish case it was held by a Justice of the Peace that this was not "using".  See Daily Express 26th April 2008.  [Such a case, whilst interesting, would not constitute a legal precedent].  If that view was right then it would be probably necessary for the prosecution to prove that the defendant was engaged in an actual communication and that would make the offence significantly harder to prove.

The word "using" is an ordinary word of the English language.  Ordinary words are normally to be given their everyday (ordinary) meaning.  Interestingly, it is almost impossible to define or describe "using" without including either the word "use" or "using" in the definition !  Thus, "using" would normally be taken to mean that the device was being operated for the purpose (or one of the purposes) for which the device exists (i.e. to communicate etc).  If that view is taken then perhaps whether the phone was in use is just a question of fact for the magistrates to decide and they would bear in my mind the mischief at which the Regulation is targeted?  If an actual call or text could be proved then fair enough.  If the court accepts Police evidence that the driver was seen looking at the mobile telephone for a fairly lengthy period (e.g. several seconds) then perhaps the court might find as a fact that the phone was in use making or receiving a call or text or viewing something on the screen.  If the holding of the phone was very momentary then perhaps a court would find that the phone was not actually being used.  It's an interesting one and there does not appear to be a crystal clear and straightforward answer!

9 comments:

  1. Where do we stand when -

    I am changing the MP3 on my mobile?
    Using Google Maps on it
    Taking a photo

    it's not an i-phone

    ReplyDelete
    Replies
    1. It's against the law as your are using a mobile device that can take or receive calls

      Delete
  2. Using for the purposes suggested, ie making or receiving calls or texts is but a small part of what my phone (an i-phone) does. It has a sat-nav function and I do enjoy playing games whilst driving. Another fun way to pass the time is to browse the web, reconcile my bank account and use any one of a large number of other apps. In lay terms this is clearly using but my biggest issue is with the sat-nav. Tapping in a destination whilst driving clearly meets the threshold, but what about looking at the screen for several seconds? Why is this worse than looking at the fixed sat-nav in my vehicle? If the mischief is about "hands on the wheel" the basic construction of a large number of upper market vehicles causes a breach almost every time the vehicle is driven. These matters are generally dealt with by fixed penalty, so arely come to court. generally the accused doesn't show so we proceed to prove in absence. I feel strongly about this, my daughter having been the victim in a crash where the other driver admitted he rammed her whilst he was on the phone. She ( a medic) couldn't use one arm for 18 months and still has a restricted functionality. Somehow, given the poential consequences, should the penalties be more akin to careless driving, based on the facts?

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  3. I cannot answer specific questions.

    In fact, regulation 110 creates 3 offences:

    a) a driver using a hand-held mobile phone;
    b) causing or permitting another to drive using a hand-held mobile phone;
    c) supervising a provisional licence holder whilst the supervisor is using a hand-held mobile phone.

    Various hand-held devices other than mobile phones are caught by Regulation 110 since 110(1)(b) refers to using hand-held devices of a kind specified in Regulation 110(4).

    110(4) refers to "devices (other than two-way radio) which perform an "interactive communication function by transmitting and receiving data". Thus a driver using such a device to view the internet would be caught.

    Rex_imperator is right in saying that many (probably the vast majority) of these cases do not come to court. The driver accepts the penalty notice (£60) + 3 penalty points. Occasionally, they are defended in court.

    Note the Jimmy Carr case here.

    Again, it is a magistrates' court decision and is not a judicial precedent.

    ReplyDelete
  4. With limited resources the targeting of mobile phone users is in my opinion a politically motivated process the cost of which does not appear to equate to the problem or its outcomes. My blog today before coming here is also on this topic.

    ReplyDelete
  5. Ed (not Bystander)4 March 2010 at 15:51

    @JP

    Are you in fact a magistrate? And will you be addressing the costs of NOT targeting mobile phone users? (In terms of traffic collisions they cause, lives and limbs, etc)

    ReplyDelete
  6. I wouldn`t blog under that title if I weren`t. I am asking is the best use of resources being applied as per the statistics quoted in my post on my site. If you haven`t read it...............

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  7. The problem is not keeping hands on the wheel, otherwise one could never use many of the controls on the car, it is the distraction element. Tests have shown that this is just as bad with a hands-free phone, and is the equivalent of being well over the drink-drive limit.

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  8. It is good to see that government taking some strict action against drivers using mobile while driving. Recently read that using mobiles while driving causes accidents.These rules affects or decreases death rate on the road.The six penality points will be added. Penalty raised from £100 to £150. If it really implemented properly, then it's a good thing.

    ReplyDelete