The law prohibits the use of a handheld phone while driving to perform an ‘interactive communication function’, including sending or receiving oral or written messages, sending or receiving faxes, sending or receiving still or moving images, and providing access to the internet.
But there is no reference in the legislation to using a phone to play music, take pictures, or make recordings.
According to road transport and motoring solicitor Lucy Whitaker of Pragma Law, Nottingham: “Many magistrates’ courts concluded that the purpose of the legislation was to prevent the phone being used for any purpose while driving. This meant that little regard was had to the function actually being performed by the phone while it was held by the driver.
“It also made it very difficult for legal professionals to advise clients on the prospects of success if they wanted to put forward a defence of not using a phone for an interactive communication function.
“The case of DPP v Barreto 2019 makes it clear that ‘interactive communication function’ requires the transmission of data between the phone and another person or device. “Therefore, taking a photograph or video on your mobile phone while driving does not fall within the ambit of this legislation. Of course, if you send a photograph then you will be transmitting data.
“To secure a guilty verdict, the prosecution must prove that the device was being used for an interactive communication function. In practice, this will be very difficult to do if the driver alleges that they were using the phone for another purpose.
“It is virtually unheard of for a police officer to inspect the mobile phone of a driver who has been stopped for this offence, even when the driver has offered to show the officer the phone. The police have simply relied on having seen the driver with the phone in their hand while pressing the buttons. It appears that this may no longer be enough for a conviction.”
This did not give people free rein to use their phones while driving for non-interactive communication functions, Whitaker emphasised, because there is still the risk of prosecution for a different offence.
“This will depend on the circumstances, but alternative offences of driving whilst not being in proper control of the vehicle, careless driving and dangerous driving will be considered.”
In DPP V Barreto, driver Ramsey Barreto had successfully had a conviction by magistrates for using a phone while driving (he had been seen using a phone to film an accident as he drove past) overturned at Isleworth Crown Court last year. The Department of Public Prosecution’s appeal against the Crown Court decision was overturned by the High Court, which ruled: “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).”
However, the judgment further clarified: “It should not be thought that this is a green light for people to make films as they drive… 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.”
Meanwhile, current laws which only proscribe the use of devices being held by drivers give the “misleading impression” that hands-free use is safe despite it creating “the same risks of a collision”, a report published by the Commons transport select committee has warned.
The committee heard from one expert that taking a hands-free call caused “essentially the same” amount of distraction as being at the legal limit for alcohol blood level in England and Wales.
Road Haulage Association chief executive Richard Burnett said: “For years we have condemned the use of handheld devices but for truckers, it is essential that they are able to be contacted and can make contact with their base or their customers.
“We totally agree that drivers should not touch their phone while driving – put it in the glove box and forget it. But voice-activated devices, as fitted in the majority of vehicles, make communication safe and viable.
“Ours is an industry that is time-critical and the ever increasing levels of congestion on the road network mean that communication is more important than ever. It’s vital that the driver can stay in touch…
“Once regarded as a luxury, a hand-free kit is now standard equipment in vehicles. If such a ban were to be put in place, how would it be enforced?”