Mobile phones ~ Magistrates' Courts

Post amended 31 July 2019

The Telegraph 29th December 2017 -  Fraser Nelson - My day in court: how I found out that a legal fog has descended on the land

The use by drivers of a "mobile phone" as a Satnav is very common but what is the law?   Mr Fraser wrote - "I’ve been doing so for a while and have been spared hours in needless traffic jams. I’ve had plenty of cause to give thanks for this technology, until I ended up on trial in a Magistrates’ Court last week.

I told the court my story. My mobile had fallen down from the cradle, and had been sliding around the dashboard. At traffic lights, almost home, I retrieved it to put it in the car door – and, while doing so, I looked at the map on its screen. I noticed the policeman in a car opposite staring at me and couldn’t work out why, until he pulled me over."

The case went to court and Mr Fraser was convicted of using a mobile phone when driving. He says that - " ... I didn’t really set out to win. My aim was to explore what a lawyer had told me: that ... six points are given to those who transgress a detailed list of mobile phone offences – but that there is no way for motorists to find out about this list unless they end up in court.

As I sat in the dock, the clerk read out the rules that the Department of Transport won’t share. As I suspected, holding a phone is not, in itself, an offence.  But if you “use” it while holding it, however fleetingly, then you’re guilty. If you so much as look at the screen to tell the time, or consult a map when stuck in traffic, then you’re “using” it as surely as if you held the handset to your ear while taking a corner on a country road."

IF Magistrates are using unpublished material issued by government to assist them in deciding these cases then there would be cause for concern.  Such advice / guidance ought to be published.   Mr Fraser tells us that the clerk read out the "rules" in court.  Possibly that would be seen as the clerk advising the Magistrates on the law and all such advice should certainly be given in open court - see Criminal Procedure Rules Part 5 - V.55.  It would be incumbent on the clerk to also advise the Magistrates as to the legal status of any material (e.g. guidance issued by government etc) quoted.   Whilst the worlds of government and the law are nowadays awash with guidance material in various forms, what amounts to "using " is a judicial decision. 

Proof:

The burden of proof of "using" rests with the prosecution and the standard of proof is beyond a reasonable doubt or, as it is often stated these days, so that the magistrates can be "sure" of guilt.

Nowhere is it stated HOW the case has to be proved.  For example, the word of one prosecution witness (say a Police Officer) telling the court what he saw may be accepted.

Law:

The law is in Regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986 as amended by The Road Vehicles (Construction and Use)(Amendment)(No.4)(Regulations 2003

The Explanatory Note at the end of Regulation 110 states - Regulation 110(1) states:

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).

Regulation 110(4) provides a definition of devices that are considered similar to hand-held mobile telephones for the purpose of these regulations. This definition excludes two-way radios.

Regulation 110(5) provides that in specific circumstances a person will not breach the regulation. Where a person makes a call to the emergency services on 999 or 112 in response to a genuine emergency where it is unsafe or impracticable for him (or the provisional licence holder) to cease driving while the call is being made, the regulation is not breached."

The interpretation of Regulation 110 has been clarified by the High Court in Director of Public Prosecutions v Barreto [2019] EWHC 2044 (Admin) - Thirlwall LJ and Goss J.  This case concerned a driver who was held by the court to have been using his mobile phone to film a road accident as he drove past the accident.  The court held:

1. 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).



2. It should not be thought that this is a green light for people to make films as they drive. As I have already said, driving while filming events or taking photographs whether with a separate camera or with the camera on a phone, may be cogent evidence of careless driving, and possibly of dangerous driving. It is criminal conduct which may be prosecuted and on conviction may result in the imposition of penalties significantly more serious than those which flow from breach of the regulations. The same applies to any other use of the phone while driving.

Regulation 104:

A different offence exists under  Regulation 104 - "No person shall drive or cause or permit any other person to drive, a motor vehicle on a road if he is in such a position that he cannot have proper control of the vehicle or have a full view of the road and traffic ahead."

The word "drive" is not defined in the Regulation but vehicles waiting at traffic lights or queuing in traffic are caught.  On this see this webpage issued by the AA - it appears to be based on existing case law as to what constitutes driving.

Would using a windscreen mounted mobile phone - (as pictured above) - as a Satnav be lawful?  Consider Regulation 104 - and you decide!

There could be a breach of Regulation 104 - "No person shall drive or cause or permit any other person to drive, a motor vehicle on a road if he is in such a position that he cannot have proper control of the vehicle or have a full view of the road and traffic ahead.