There is a well-rehearsed school of legal blogging that goes down well with Barristerblogger’s many barrister, solicitor and law student readers. The way it works is this: find a journalist or politician who has said something stupid, as long as it’s vaguely related to the law it doesn’t matter too much what. Point out your victim’s ignorance of the law. Mock them and tease them for a thousand words, and Hey Presto, you have a blog that will be read and enjoyed by thousands.
It is a reliable formula and when I read Fraser Nelson’s piece for the Daily Telegraph about his court-room defeat on a charge of using a mobile phone while driving it seemed to me that here was just such an opportunity to brighten up the dead days between Christmas and the New Year. He is a shrewd and likeable journalist but his piece contains its share of legal nonsense, and he would be a good target for a “Journalist doesn’t know any law” post. Apart from anything else it would be a darned sight easier to write than the more serious business of a reply to Noel Malcolm’s short but brilliant attack on the European Convention on Human Rights.
Under the headline: “My day in court: how a legal fog has settled across the land,” Mr Nelson’s account of what led to his day in court (for those not signed up to the Telegraph Premium service) is this:
“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 consequence was that he was prosecuted, and duly convicted, under S.41D of the Road Traffic Act 1988 and Reg.110 of The Road Vehicles (Construction and Use) Regulations 1986. He does not mention the sentence that was imposed, but we can safely assume that the magistrates imposed at least the minimum 6 penalty points (upped from 3 points last March in a rare act of good sense by the Transport Minister Chris Grayling) and a fined him up to £1,000, plus a “victims surcharge.” Presumably he was also ordered to pay the prosecution costs.
To his credit Mr Nelson does not complain of a wrongful conviction. The purpose of pleading Not Guilty, he says, was not to win but:
“… to explore what a lawyer had told me: that Mr Grayling’s six points are given to those who transgress a detailed list of mobile phone offences – but that there is no way to motorists to find out about this list unless they end up in court.”
It is as well for the lawyer that he or she is not named because what was said to Mr Nelson was – to put it politely – incorrect; either that, or he misunderstood what the lawyer said, which again may well be because the lawyer didn’t make it clear.
There is indeed a “detailed list of mobile phone offences” connected with driving, but you do not have to end up in court to know what they are. It would, indeed, be scandalous and Kafkaesque were that the case.
So, even though it may not have been entirely Mr Nelson’s fault, this seemed like a good opportunity to poke fun at his pitiful efforts to find this detailed list of mobile phone offences, otherwise known as Regulation 110 of the Construction and Use Regulations 1986.
What a fool Mr Nelson must be not to know how to find them!
I can show Mr Nelson how to do it in seconds.
Just to be sure that I didn’t make any terrible mistake, I decided to cheat. I did what any well-resourced lawyer would do, and went to the expensive subscription website Westlaw and typed in “Road Vehicles (Construction and Use) Regulations 1986.”
Well, I know they exist, and I pay good money to have such things at my fingertips. What on earth was going on?
It was New Year’s Day so I rang the 24 hour / 365 days a year helpline.
“Good Morning, Westlaw, Ricky speaking. How may I help you?”
Ricky was a charming young man in California, where it was, he told me, 7 o’clock in the morning. He sounded surprisingly alert and eager to help considering it was just after dawn on New Year’s Day. He was probably a Mormon. He couldn’t have been more helpful, links were sent, emails exchanged and passwords reset. Then, after twenty minutes or so, his manner subtly changed.
“Sorry, The Construction and Use Regulations are outside your subscription.”
“This is ridiculous, I harrumphed. “These regulations are central to my practice! I cannot work without them. Innocent men will rot in jail without hope of parole, or at least until a poorly-funded University Innocence Project gets them exonerated, and the usual waiting time for that is 45 years!”
“I’m afraid there’s nothing I can do. Have a nice day.”
There was a soft “psssh” as Ricky opened another can of root beer to wash down his hash-browns and eggs-easy-over. He no longer seemed to care.
My subscription was useless. I was in the same position as Fraser Nelson.
So, if you are not signed up to an expensive subscription service, or you are but it doesn’t cover you, how do you find the wording of the amended regulation?
If you would rather not spend £294 buying Wilkinson on Road Traffic Offences, the most obvious place to start looking would be www.legislation.gov.uk. It has the look and feel of a dull but authoritative website but its appearance is deceptive. Although it is dull it is not authoritative.
If you relied upon legislation.gov.uk you would soon find yourself in a baffling legal labyrinth. It is notorious for its inability to keep up with the torrent of amendments to which most legislation, and especially Road Traffic legislation, is subjected. In fact, I think they have probably given up trying. You will indeed find the original, that is to say 1986, text of the Regulations, but as usual with this dreadful website it has not been updated. The text fizzles out at Regulation 109, a charmingly dated law about in-car televisions and cathode ray tubes.
However, all is not lost. There are a number of websites which set out the current law reasonably clearly and accurately.
I googled “use of mobile phone while driving” The first result that came up was this:
It gives the out of date advice that using a mobile phone will get you 3 penalty points, which does not inspire a great deal of confidence. I had to look at the web address carefully before spotting the giveaway “ni”. This was the Northern Ireland Government website. Fortunately for the people of Ulster, Mr Grayling’s writ does not run in Northern Ireland, and the law appears not to have changed there. Perhaps this has something to do with the fact that the province has not had a government for nearly a year. Northern Ireland civil servants with little or no government information to impart, have nevertheless been keeping the website as up-to-date as possible by adding a background of snowflakes and a lengthy section on how to prepare and cook a turkey (and some additional information on geese, ducks and chickens, although sadly nothing on nut roasts or roast potatoes).
Fortunately, fairly high up on the google results is a link to the Crown Prosecution Service website, which contains detailed legal guidance. It is for the most part pretty accurate. It is not always completely up to date, but it is a great deal more reliable than legislation.gov.uk. Helpfully, it also gives the name of the Statutory Instrument that added Regulation 110 to the 1986 Regulations. It goes by the catchy title of The Road Vehicles (Construction and Use) (Amendment) (No 4) Regulations 2003. There is no link from the CPS website to the text of the Regulations, but if you type Road Vehicles (Construction and Use) (Amendment) (No 4) Regulations 2003 into google you will find it, funnily enough, back on the www.legislation.gov.uk website.
So now we have found the “detailed list of offences.” It’s not secret, but nor is finding it straightforward, and for an unrepresented person without any experience of navigating through the shifting sand of amended statutes and statutory instruments I have to concede that it is pretty difficult. It is wrong to say that “there is no way for motorists to find out about this list unless they end up in court,” but Mr Nelson certainly has a point.
What about his other point, that the law itself is unclear?
If you don’t want to get bogged down in the intricacies of the law, please stop reading here.
If you aren’t confused now you certainly will be by the time you finish. The conclusion is that Mr Nelson is right. The law is indeed a mess and needs to be redrafted.
But if you are a glutton for punishment, read on.
At first sight, Regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986 seems fairly clear:
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).
Paragraphs (2) and (3) deal with “causing or permitting” someone else to use mobile phones while driving, and with supervisors of learner drivers using them so I won’t confuse things by including them. Together they could be said, I suppose, to set out the “detailed list of phone offences” to which Mr Nelson refers.
A “hand-held mobile phone” seems clear enough, but what are these “hand-held devices of a kind specified in paragraph (4)”? Paragraph (4) has the answer:
- A device referred to in paragraph [s] (1)(b) … is a device, other than a two-way radio, which performs an interactive communication function by transmitting and receiving data.
Clearly there is scope for some confusion about devices other than mobile phones. The term “interactive communications function” is partly defined in Paragraph (6) (to which we will come – essentially it means devices that send and receive data including messages and pictures, or which provide access to the internet).
There are, for example, hand-held devices which sometimes do and sometimes don’t perform “interactive communications functions.” If you hold an iPad while driving, is that an offence? Certainly it is if you are using it to send emails or to tweet (because those activites involve the transmission and receipt of data), but what if it is disconnected from the internet and you are using it to play music? Or what if it is still connected to the internet but you are using it to play music recorded internally? Is it, at that point, the sort of device specified in Paragraph (4)? (By the way I am not advocating the use of an internet disabled iPad while driving, irrespective of this offence you would almost certainly be driving carelessly or even dangerously if you did so).
Interesting though such speculations might be, the device Mr Nelson picked up was unquestionably a mobile phone, so for simplicity let’s stick with mobile phones. As we have seen, the offence under paragraph 1 (a) of “using” a mobile phone while driving does not at first sight seem to depend on it having an “interactive communication function,” and even if it did, it was performing such a function when he looked at it. It was displaying a map transmitted via a satnav function. He looked at it, which must amount to “using” it.
So my legal advice to Mr Nelson would be firm: do not appeal, you will lose. (Even here though, there is a caveat which was drawn to my attention since originally posting this blog, see the note at the end).
Mr Nelson says that there is uncertainty over what “use” means in this context. I disagree about that, but there is uncertainty, though not in his case, over the meaning of the innocent-looking phrase “hand-held mobile phone.”
He refers to the case of the tax avoiding comedian Jimmy Carr who was in 2009 acquitted of using his phone while driving his Bentley after telling the Harrow beaks that he was not making a call on it, merely recording a joke; in other words using his phone as a dictaphone. According to the report in the Daily Telegraph, Mr Carr argued that he:
“… had not been using the phone to make a call, or for any other interactive purpose, and therefore didn’t fall foul of the legislation.
The prosecution argued that the fact the phone was capable of making an interactive call was enough for Carr to be found guilty.”
A decision of the Harrow Magistrates creates no precedent. Magistrates often get the law wrong, and on this occasion (assuming that the report is accurate) they may well have done so. They seem to have been sidetracked into an argument about whether the phone was being used “for an interactive purpose.”
The argument arose because of Paragraph (6) of the Regulation:
- 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;
Mr Carr’s argument (I assume) was this:
“I accept I was using my hand-held mobile as a dictaphone but there was no receipt or transmission of data so I was not using it for an ‘interactive communication function.’ Paragraph (6) restricts the natural meaning of “hand-held” to the situation where the phone was making or receiving a call or “performing any other interactive communication function.” The thrust of the Regulations is directed towards banning hand-held devices (including phones) which communicate. This is demonstrated by Paragraph 1 (b) which applies only to hand-held communication devices, not to all hand-held electronic devices.
The Harrow Magistrates were confused, Mr Nelson is confused and I am certainly confused. Because, on the whole, using a mobile phone while driving is a fairly minor offence – until someone is killed in an accident – the higher courts have not been asked to give any authoritative ruling, even though the Regulation has been in place since 2003. (The Regulation is applicable in Scotland and there has recently been a somewhat inconclusive case1 in the Sherriff Appeals Court, which is binding on Sherriff Courts in Scotland, although only of persuasive value in England).
For what it’s worth I think the Harrow Magistrates were wrong and, Mr Carr got away with it when he should have been convicted.
Let’s dig a little deeper into this tricky Paragraph (6).
If you read it carefully it is clear that it is not intended to define what is meant by “use” of a phone. It is directed towards the different issue of when a phone is to be “treated as hand-held.” The phrase “is to be treated as” extends the legal meaning of “hand-held” to situations in which a phone would otherwise not be considered “hand-held.” If a phone actually is held in someone’s hand it is a strange use of language to say it is “treated as hand-held,” it just is hand-held.
Had the intention been to restrict the meaning of “hand-held” to cases where the phone was being used for an interactive communications function, inserting the word “only” before “to be treated,” would have achieved that object. Alternatively a simple definition clause beginning:
“A hand-held mobile telephone means ….”
would have done the job.
As actually drafted, the Paragraph appears instead to extend the legal meaning of “hand-held” to some situations where the phone is not in fact in the driver’s hand. It catches, for example, the driver who starts a telephone conversation by holding a phone and dialling a number, and then drives with the phone sitting on his lap on loudspeaker. Without Paragraph (6) it could be argued that in this situation the phone was not “hand-held”. Paragraph (6) seems to close down that argument; the phone is to be “treated as hand-held” because “at some point during the course of making” the call it was held in his hand.
This construction of the Regulation avoids the undesirable, even absurd, result that drivers like Mr Carr are allowed to drive a motor vehicle on the road while using a hand-held mobile phone despite a law saying, in terms,“no person shall drive a motor vehicle on the road if he is using a hand held mobile telephone.” It is ridiculous that such a simple sentence should bear a convoluted meaning dependent on whether the phone is exchanging data or not.
Where does all this leave a driver who uses his phone as a satnav?
In this case the phone is being used as an “interactive communication device.” If the driver holds it whilst driving and either looks at the screen or listens to the commentary, he is breaking the law.
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.
Thus, use of a mobile phone as a satnav may well be unlawful unless the app is turned on without holding the phone in your hand. Obviously, holding the phone in a special cradle will make it legal. But so too, I suppose, would pushing the necessary buttons or touching the necessary parts of the phone’s screen with your finger, as long as you do not actually pick it up and hold it. What a nonsensical law that is.
The fundamental problem is that in 2003 when the Regulation was drafted, mobile phones were very different things to those that we have today. The iPhone was not released until 2007. A mobile phone in 2003 was used for making calls or sending text messages. It was not used as a satnav, or for playing music or for almost any of the other myriad uses to which today’s phones are put. The result is that a law which might have been workable in 2003 has become a confusing mess.
Finally back to Mr Nelson. Frankly, by now I’m as confused as he was. His piece sets out his understanding of the law:
“… holding an old-fashioned satnav at the wheel throughout your journey is fine, because it’s not a mobile phone.”
This is certainly wrong. It is absolutely not fine. If you hold an old fashioned satnav in your hand it becomes an “hand-held interactive communications device” covered by Paragraph 1 (b). If you use it you are committing an offence.
“But pick up an identically-shaped mobile when stuck in traffic, and it’s six points and a fine of up to £2,500.”
That’s wrong too. Simply picking up your phone is legal, the offence is “using” it. (And the maximum fine is only £1,000 unless you were driving a goods vehicle or a vehicle designed to carry 8 or more passengers).
“Satnav apps are OK when not held, illegal if picked up.”
He’s talking about using satnav apps on a phone, and this is broadly speaking correct.
“Dictaphone apps are OK at any stage;”
Despite Jimmy Carr’s acquittal you would be very unwise to make that assumption. If valuable jokes tend to come to you when you are driving your Bentley, arrange for your Cayman Islands shell company to employ a chauffeur.
“Non-interactive satnav apps are probably OK.”
Whatever a “non-interactive satnav app” is, it’s not safe to assume it’s legal to use it on your hand-held phone when driving.
Mr Nelson has had the public-spirited idea that, despite having no chance of success, he could appeal with a view to clarifying the law. Sadly, I don’t think that would happen. Courts do not like being asked to decide hypothetical questions. If a question of law does not have to be decided a court will usually do its best not to decide it. All that would happen is that Mr Nelson’s conviction would be ruled proper and he would be ordered to pay the costs. The issue of whether use of a mobile phone for “non-communicative” purposes is prohibited will have to wait for another day.
Better still, Regulation 110 needs to be redrafted for the age of the smartphone. Talking satnav apps are very helpful and should be legal, but any handling of any electronic device by a driver, for any purpose (except in emergencies), should be made clearly and unambiguously illegal.
Note 4th January 2018
Since originally posting this blog some readers have pointed out, both in the comments below and on Twitter, that not all satnav apps work in the same way. It is apparently quite possible for an app to work without transmitting any data at all, by receiving information from satellites, and by a process of triangulation working out where you are on a previously installed map. Since a (1) (b) device at least, and possibly a mobile phone too, must be a device that “transmits and receives data” (see Paragraph (4)) it may be that some types of mapping app may not be prohibited, even when hand held.
1Scott Smith v. Procurator Fiscal, Glasgow  SAC (Crim) 16. The Court ruled that the evidence of a police officer that he saw the defendant using a phone while driving was sufficient to found a conviction, and that it was not necessary to establish (by the evidence of a phone examiner) what the phone was being used for at the time. On the other hand the court appeared to accept, at least for the sake of argument, that a mobile phone must be capable of carrying out an “interactive communication function” in order for its use to be prohibited.