Tuesday, 2 January 2018

Mobile phones ~ Magistrates' Courts

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IF Magistrates are using unpublished material issued by government to assist them in deciding these cases then there would be cause for concern.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 and will depend on all the circumstances.

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 - "Regulations 110(1) and (2) prohibit a person from driving, or causing or permitting a person to drive, a motor vehicle on a road if the driver is using a hand-held mobile telephone or similar device. Regulation 110(3) prohibits a person from using a mobile telephone or similar device while supervising a holder of a provisional licence at a time when the provisional licence holder is driving a motor vehicle on a road. It is an offence under section 42 of the Road Traffic Act 1988 to contravene these regulations. 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."

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).

Devices within (b) are those devices, other than a two-way radio, which perform an interactive communication function by transmitting and receiving data - see Regulation 110(4).  For the phrase "interactive communication function" see Regulation 110(6)(c).

The "mischief" at which the Regulation is aimed is clearly the use of devices which prevent the driver being able to use both hands for controlling the vehicle and which distract a driver from keeping his eyes on the road.   So, it is crystal clear that Mr Toad driving down the High Street chatting away on his phone held in one hand and with the other hand on the steering wheel will be convicted.  Regrettably, such driving is an all too common occurrence and it is potentially dangerous conduct.  By the way, Mr Toad could also be prosecuted under Regulation104 - "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.

The word "using" is not further defined in the Regulation.  It will be for the court to decide whether a device was being used and it appears that very little is actually required to persuade a Magistrates' Court that a phone was actually being used.  IF there is some guidance material for Magistrates as to what is considered to constitute "using" then it ought to be published.

The phrase "hand-held mobile telephone" is amplified in Regulation 110(6)(a) - "For the purposes of this regulation - (a) a mobile telephone or other device is 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; ..."

The following links may assist with understanding of the law.

CPS - Road Traffic Offences - Mobile Phones

Government - Using mobile phones when driving

Drivers of certain types of vehicles should also be aware of the possible involvement of Traffic Commissioners - see Senior Traffic Commissioner - Statutory Guidance and Statutory Directions

Traffic Commissioners are appointed by the Secretary of State for Transport under powers in the Public Passenger Vehicles Act 1981 section 4.   See Gov.uk - Traffic Commissioners.

Traffic commissioners are responsible for the regulation of bus, coach and goods vehicle operators, and registration of local bus services. Where appropriate, they can call operators to a public inquiry to examine concerns about vehicle and driver safety. They also deal with professional drivers at conduct hearings.

A Scottish case:

See this case from Scotland.

Other links:

RAC - Mobile phone driving laws

RoSPA - Driver Distraction - with links to Factsheets including one on Satellite Navigation

Question:

Would using a windscreen mounted mobile phone - (as pictured above) - as a Satnav be lawful?

My answer - there would 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.


2 comments:

  1. Good heavens - Regulation 104, thus interpreted, would make the use of screen-mounted satnavs a crime.

    ReplyDelete
    Replies
    1. This article, although it has no legal authority, is interesting ...

      The Sun - Windscreen mounted Satnav"

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