Driving whilst using a mobile telephone – the law clarified

Prosecutions are routinely brought under both the Road Vehicles (Construction and Use) Regulations 1986 reg.110(1)(a) and the Road Traffic Act 1988 s.41D for using a mobile telephone or similar device whilst driving.

In July this year, the High Court decided that this legislation did not prohibit all use of hand-held mobile phones while driving. It prohibited only the making and receiving of calls and the use of interactive communication functions. This is important because police almost always institute a prosecution simply because a driver is seen holding a telephone. In other words, the simple act of having a device in the hand has been seen as sufficient to break the law. I have had very many clients complain that when stopped police will not even look at the device to see what was being done if anything. Police positively refuse to do this and I have never quite understood why. I think they prefer not to be drawn into a conversation in which they have to admit that the phone shows no activity as this weakens any prosecution.

This approach causes much frustration when the driver has not been holding a telephone but something else instead, perhaps a wallet, packet of cigarettes or sandwich. I have been involved in cases of telephone mistaken identity but my experience is that if police believe they saw a driver holding a phone, that’s it.

The High Court has now made clear that simply holding a telephone will not be an offence unless the driver is using an interactive communication function. This covers the obvious telephone calls, texts, emails, and internet. It would not include using the device to, for example, access pre-recorded and stored music. There are activities that do not use interactive communication functions and police will have to be willing to find out exactly what a driver was doing. It will no longer be good enough to prosecute simply because a device was being held. There will need to be evidence of interactive use. Of course, that may come from the officer seeing a telephone to the ear and the driver obviously speaking. Otherwise more will need to be done.

Motorists will still be open to prosecution for not being in proper control of the vehicle if they hold a device, but that applies to any activity that interferes with control. However, there has to be evidence of impaired control.

A change in legislation is expected.