Mobile Phones and Driving Offences: Contextualising the Need for Recent Legislative Changes

Abstract

Keywords

Road Traffic Act 1988 Road Vehicles (Construction and Use) Regulations 1986 mobile phone driving offence hand-held interactive communication device

On the 14th June 2021 at Bexley Magistrates’ Court the appellant, B, was convicted of an offence under s.41D Road Traffic Act 1988 and Regulation 110 Road Vehicles (Construction and Use) Regulations 1986 (‘the 1986 regulations’). The factual basis of the conviction was straightforward and was not in dispute. On the 21st September 2020 B was observed ‘driving erratically’ (at [3]) on Trafalgar Square in Central London. Whilst stationary at a set of traffic lights B was observed by a police officer holding a mobile telephone, the screen of which was illuminated and which B was further observed ‘swiping’ with his thumb. The police officer stopped B's car and ascertained that B had been using the mobile telephone to play music through the car's sound system and that at the relevant time B had been changing the song.

Section 41D Road Traffic Act 1988 (as amended by s.26(1) Road Safety Act 2006) creates an offence of failing to comply with a construction and use requirement specified in the 1986 regulations. This includes a failure:

As to not driving or supervising the driving of a motor vehicle while using a hand-held mobile telephone or other hand-held interactive communication device, or not causing or permitting the driving of a motor vehicle by another person using such a telephone or other device. (Road Traffic Act 1988, s.41D(b))

Regulation 110(1) of the 1986 regulations specifies that ‘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).’ At the time that the present case was decided, para (4) of the 1986 regulations identified a specified hand-held device as ‘a device, other than a two-way radio, which performs an interactive communication function by transmitting and receiving data.’ In this context a device was ‘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 (Regulation 110(6)(a))’.

It was the conclusion of the magistrates, based on the facts presented, that B's use of the mobile phone in such a way constituted the use, whilst driving, of an ‘interactive communication device’ for the purposes of s.41D Road Traffic Act 1988 and Regulation 110 of the 1986 regulations. B appealed the decision of the magistrates by way of case stated with the single question for High Court being whether, on the facts as established, the magistrates were correct in convicting B of the relevant offence.

Held, dismissing the appeal and upholding the appellant's conviction, under the regulations in force at the time that he was driving, ‘the appellant's use of his mobile telephone led to him committing an offence pursuant to Regulation 110’ (at [16]) of the 1986 regulations and section 41D Road Traffic Act 1988. The use by the appellant of a Bluetooth connection to play music on his mobile telephone via the car's sound system constituted an interactive communication between the mobile phone and the car's sound system and ‘was not incidental to his use of the telephone. It follows that he was using an “interactive communication function” … The communication may or may not have been just one way but one way communication is entirely sufficient.’ (at [14]).

Commentary

In March 2022, Regulation 110 of the 1986 regulations was amended by the Road Vehicles (Construction and Use) (Amendment) (No. 2) Regulations 2022/81 reg.3(1)(a). Specific details of relevant amendments are discussed below. At the time of deciding the present case, the amendments to the 1986 regulations had been proposed but not yet implemented. At first glance the subsequent implementation of amendments, including specifically to Regulation 110, may appear to render the decision in the present case nugatory. However, the decision of the High Court in Bendt serves as a cogent example of the types of challenges that have beset the law in this area and provides an opportunity to briefly consider whether recent changes have addressed perceived ‘loopholes’ in the rules as they were previously constructed.

‘Loopholes’: Potential for Different Outcomes in Factually Similar Cases

In cases such as the present case, when establishing whether an offence was committed under Section 41D Road Traffic Act 1988 and the 1986 regulations it must firstly have been established that the defendant was using a hand-held mobile phone or hand-held interactive communications device at the relevant time. Prior to the March 2022 amendments, if the latter was established then, by Regulation 110(6)(a) of the 1986 regulations the device would 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 is where the potential for ambiguity arises.

Again, prior to March 2022, Regulation 110(6)(c) provided a non-exhaustive list of what might constitute and interactive communication function 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.

When drafted, these regulations covered most of the activity that might be undertaken on a standard mobile telephone or similar device however the evolution of the Smartphone in particular quickly expanded the capabilities of the technology beyond the scope of the regulations. Clearly covered were common issues such as the making or receiving of phone calls or the sending of text messages or emails. The High Court suggested obiter in DPP v Barreto [2019] EWHC 2044 that the drafting of such messages would also likely fall within the ambit of the regulations, but this remained a moot point. Even less clear was how the regulations applied to activities such as listening to music on a device, utilising the device for the purposes of GPS location or even possibly ‘unlocking’ the device using capabilities such as ‘Face ID’ in order to utilise another function. As is often the case in these types of situations it appears that the capability of the technology outpaced the applicable legal rules.

The present case provides an interesting example of the type of issue faced. The court concluded that B's use of the device to play music through the car's sound system via Bluetooth constituted the use of a hand-held interactive communication device. That the communication was perhaps only one way (from the device to the car's sound system via Bluetooth) was irrelevant and was sufficient to satisfy the requitements of the offence. But what if B has simply been playing the music through the device itself? This hypothetical was raised by Davis LJ giving judgment in the case however his Lordship identified that the court did ‘not have to reach any conclusion on the point as to whether that would transgress the regulation.’ (at [14]). It is submitted that, under the version of the 1986 regulations in place at the time, the basis for a conviction on those facts would be far less clear.

This is particularly the case given the decision of the High Court in DPP v Barreto (above). In Barreto the defendant was observed using a mobile phone to record video footage of a road traffic collision on another carriageway. The High Court upheld the decision of the Crown Court to quash the defendant's conviction for an offence under s.41D Road Traffic Act 1988 on the basis that the defendant was not using the device to perform an interactive communication function and therefore did not contravene the Regulation 110 of the 1986 regulations.

Giving judgement in Bendt, Davis LJ distinguished Barreto and declined to consider whether that case was correctly decided, though his Lordship did accept that he would have been bound to follow that decision. Indeed, the court in Bendt acknowledged that it could ‘see force’ (at [13]) in the submissions of the respondent that the decision in Barreto would likely have been different had the defendant in that case been ‘live streaming’ footage of the incident rather than simply recording it. Though again the court made no firm ruling on this point as it was outwith the scope of the appeal.

Nevertheless, the fact remains that both cases raise examples of factual circumstances where the liability of a defendant engaging in exactly the same activity is dependent on a technicality. In a case such as Barreto a defendant who used a mobile phone as simply a recording device might be acquitted whereas a defendant who live streamed the exact same footage would be much more likely to be convicted. In cases similar to the present case whether a defendant was convicted might turn on whether the music played was on the device itself or through interactive communication with some other device such as a car's sound system. The potential for such arbitrary and inconsistent application of the law was clearly unsatisfactory.

The March 2022 Amendments

The introduction of amendments to the 1986 regulations in March 2022 were part of the government's stated aim to take a ‘zero tolerance’ approach to mobile phone use whilst driving (https://www.gov.uk/government/news/transport-secretary-declares-zero-tolerance-for-phone-use-behind-the-wheel-as-law-changes-today). Writing about DPP v Barreto, Adam Snow observed that the decision in that case ‘narrow[ed] the offence to include only “use as” a mobile phone or ICD [interactive communication device] rather than “use of”.’ (Snow, A. ‘Interactive communication’ and driving – does it matter whether it is a mobile or camera? J. Crim. L. 2019, 83(5), 425–429 at [p.427]). The March 2022 amendments appear to have reversed that position.

To achieve this reversal, Regulation 110 has been amended in three key ways. Firstly Regulation 110(4) has amended the definition of interactive communication device which is now defined as ‘A device … other than a two-way radio, which is capable of transmitting and receiving data, whether or not those capabilities are enabled [emphasis added]’. This amendment shifts the focus from whether the device was performing an interactive communication function to whether it was capable of doing so.

The questions then become whether the device was hand-held and in use at the relevant time. To accommodate this Regulation 110(6)(a) has been amended so that ‘a mobile telephone or other device is to be treated as hand-held if it is, or must be, held at some point while being used’ [emphasis added] thereby focussing on ‘use of’ the device rather than ‘use as’ a device performing a specific function.

Finally, the circumstances in which a mobile phone or interactive communication device will be considered to be ‘in use’ have been greatly expanded through the amendment of Regulation 110(6)(c) to include;

(i) illuminating the screen; (ii) checking the time; (iii) checking notifications; (iv) unlocking the device; (v) making, receiving, or rejecting a telephone or internet based call; (vi) sending, receiving or uploading oral or written content; (vii) sending, receiving or uploading a photo or video; (viii) utilising camera, video, or sound recording functionality; (ix) drafting any text; (x) accessing any stored data such as documents, books, audio files, photos, videos, films, playlists, notes or messages; (xi) accessing an application; (xii) accessing the internet.

Conclusion

The amendments to the 1986 regulations appear to be a significant step forward in clarifying the law in this area and in making it easier to prosecute those who use hand-held devices whilst driving. The amendments certainly add a much-needed degree of consistency and appear to remove the potential for a defendant to escape liability based simply on the arbitrary question of whether the device was performing an interactive communication function at the relevant time. The March 2022 amendments have expanded the reach of the 1986 regulations. The shift in focus to whether the defendant was using a hand-held device at the relevant time and the enhanced, non-exhaustive list of activities constituting ‘use’ appear to effectively prohibit the use of hand-held devices whilst driving for any purpose. This appears to be consistent with the stated aims of the government and the ‘zero tolerance’ approach to the use of hand-held devices by motorists whilst driving.

Adam Jackson