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Law on driving with mobile phones a ‘confusing mess’, top criminal barrister says

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The rules are tricky for lawyers even to find, let alone understand

A high-profile barrister has branded the law on driving while using a mobile phone a “confusing” and “incomprehensible” mess.

Matthew Scott took to his popular Barrister Blogger website to argue that the “nonsensical” rules essentially make it illegal to use a phone as a satnav “unless the app is turned on without holding the phone in your hand”.

Law students grappling with the finer points of proprietary estoppel may sneer, but it turns out that road traffic law has its interpretative subtleties too. For example, Scott says:

“What about if, before he starts driving, the driver holds the phone in his hand, turns on the satnav app, and then places it on the passenger seat in order to listen to the navigation directions? There is an argument that because he has held the phone ‘at some point during the course of… performing [an] interactive communication function’ he is to be treated as using a hand-held mobile phone while driving.”

Driving while using a handheld phone or device is an offence under regulations introduced in 2003. More recently, Transport Secretary Chris Grayling doubled the penalty points and fine that come with a conviction for use of a phone behind the wheel.

The Crown Prosecution Service (CPS), though, concedes that because of the way the rules are drafted “there has been some debate about what use means”.

The latest comments from across Legal Cheek

Scott’s post was sparked by a recent column by Spectator editor Fraser Nelson. The Scottish journalist — who was recently schooled by legal Twitter when he waded into the law on Brexit — complained of the “legal fog” that descended when he found himself tried for the motoring offence in the mags.

Nelson, despite never doing a law degree, managed to drop some big legal names in his column, invoking Lord Diplock and former Supreme Court justice Lord Bingham in demanding that the law be “accessible, intelligible, clear and predictable”. The Telegraph has taken up the cause, with a flurry of recent articles complaining about confusing mobile phone rules.

Even Scott was forced to concede that “for an unrepresented person without any experience of navigating through the shifting sand of amended statutes and statutory instruments… it is pretty difficult” to track down the regulation in question — let alone understand it.

For the next time your mates want expert legal advice, it’s Regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986, as inserted by the Road Vehicles (Construction and Use) (Amendment) (No 4) Regulations 2003. Simple.

Mobile phones aren’t the only device caught by outdated legislation.

Hoverboards — all the rage a couple of Christmases ago despite their unfortunate tendency to catch fire — are banned from the roads by virtue of the Highway Act 1835. The High Court decided a few years ago that a similar device, the Segway, came within the scope of the pre-Victorian legislation, holding that “the fact that parliament in 1835 could not have had the Segway in mind is true but irrelevant”.

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13 Comments

Anonymous

This is the text of the relevant regulation:

110.—(1) No person shall drive a motor vehicle on a road if he is using— (a) a hand-held mobile telephone…

Where on earth is the ambiguity there? Who could read that and think that there must be an exception if you are using your hand-held mobile telephone as a satnav? It clearly means that you can’t use a hand-held phone (whether for making a call, texting or using an app) while driving.

If the phone is on and you’re interacting with it using your voice, if for some reason you were prosecuted for this, it would be perfectly possible to argue that the phone was not functioning as a hand-held device so you shouldn’t be taken to have been using a hand-held device in the meaning of the legislation.

It is bad that the legislation is hard to find, but that is a completely separate issue.

(6)(4)

A trainee

You say there’s no ambiguity and then go on to highlight ambiguity….

Reading it cold, I think a phone is clearly a hand held device, whether it is used in the hand or not. I think the ambiguity has arisen out of practice – unless you are engaging with a sat nav too much (eg touching screen while driving), you are not treated as breaking the law. This creates an implied “as a handheld mobile device” in the legislation, after “using a handheld mobile device”.

I doubt a legislative change will occur, as he police and courts will need discretion to issue fines and prosecute based on degree of use – it should be ok to give verbal commands to your phone or touch one button (eg recentre or the voice activiation button if you don’t use “hey Siri” or whatever) – and standards / tech are likely to change faster than legislation can cope with.

A relevant body (is there something more appropriate than the DPP or Highway Code or DVLA?) should issue some practical guidelines offering motorists certainty, even if its caveats by a degree of use carve out – e.g. it’s ok to press a button or two when the phone is fixed to a bracket, like you would a radio, but entering an address manually is unlikely to be acceptable. Even when not contravening rules directly applicable to the device, you could still be charged for driving without due care and attention, as you could if, for example, you were too engaged on tuning your radio and didn’t pay sufficient attention to the road”.

(4)(3)

Student

How far does this legislation reach with regard to use of a hand held mobile phone. If I use my smart watch while driving which is connected to my phone, am I using a handheld mobile phone? A watch clearly is not covered by that definition but the watch makes use of the phone.

I certainly would submit that any points issued as a result of using a smart watch aren’t covered by the legislation. Thee law isn’t clear (to the extent of my knowledge) about exactly how far it reaches and what is not allowed.

(1)(0)

Anonymous

You’re also not allowed to use a “device, other than a two-way radio, which performs an interactive communication function by transmitting and receiving data.” No using your smart watch at the wheel. http://www.legislation.gov.uk/uksi/2003/2695/regulation/2/made

(0)(0)

JoJo

Well, what about using my touchscreen in-built GPS? It’s the same screen/touchpad as my radio?

And before anyone berates me, behave. I drive a 2014 Corsa.

(3)(1)

A Barrister

That’s not hand-held.

Nor is a phone in a cradle.

(2)(0)

Anonymous

A phone in a cradle may not be in the hand but it is still a hand held mobile telephone. Just like a mobile telephone is still a mobile telephone when it is stationary

(5)(0)

The Corsa Rules

You can’t be a junior criminal barrister then driving such an expensive car.

(5)(0)

Anonymous

In other news, the law fails to keep up with technology…

(1)(0)

Whooski Fuckypoo

What about texting while driving as long as the phone is in a cradle or holder? Rules?

(0)(0)

Scep Tick

“What about if, before he starts driving, the driver holds the phone in his hand, turns on the satnav app, and then places it on the passenger seat in order to listen to the navigation directions? There is an argument that because he has held the phone ‘at some point during the course of… performing [an] interactive communication function’ he is to be treated as using a hand-held mobile phone while driving.”

No there isn’t.

(2)(0)

SingaporeSwing

Lord Bingham was never a “former Supreme Court President”.

(4)(0)

Anonymous

RAC has a guide on using mobile phones, granted only up to date as at August 2017 but its clear that you can only use a mobile phone if it is hands-free.

https://www.rac.co.uk/drive/advice/know-how/mobile-phone-laws/

(0)(0)

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