The law on using a mobile phone while driving is an out of date and incomprehensible mess

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”

Fraser Nelson: lost in a legal fog

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.”

Nothing Found”

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:

Mobile telephones

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:

  1. 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:

  1. 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.

Clear?”

Emphatically not.

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 [2017] 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.

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

54 thoughts on “The law on using a mobile phone while driving is an out of date and incomprehensible mess”

  1. For your information, there exist Satnav programs that can be downloaded “offline” and then run on a phone without the phone being connected to the internet. (e.g. Sygic)

    A phone running one of these would presumably then be equivalent to a traditional Satnav.

  2. ““… 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””

    I think Mr.N is referring to ye olde Sat Nav with preloaded map tiles. Whilst the old sat navs were still receiving a GPS signal for the purpose of location, they never transmitted any data so arguably are not communications devices. Ye Old Sat Nav in such a case is not much more than an AA Atlas on your steering wheel. Which, of course, is probably Careless…

    1. +1 on this interpretation. There’s no two-way communication with the older, stand-alone sat-navs. They’re arguably not ‘hand-held’, and it’s had me wondering if the use of the phrase in (1)(b) is superfluous. I haven’t given it a great deal of thought, though!

  3. In my opinion the regulation is ambiguous as to whether a traditional SatNav is performing an ‘interactive communication function’. The way 110(4) is phrased makes me think that ‘interactive communication function’ and ‘transmitting and receiving data’ are separate concepts. To be covered a device must perform an interactive communication function *by* transmitting and receiving data, which implies a device might perform an interactive communication function otherwise than by transmitting and receiving data in which case it won’t be covered. A traditional SatNav isn’t covered by the list in (6)(c) although I realise that isn’t exhaustive. The way it’s been drafted I can only guess the intention was that ‘interactive communication function’ falls to be decided by the relevant court, but for me, as a term in plain English ‘interactive communication function’ doesn’t cover a traditional SatNav. The list in (6)(c) is messages and images and internet. Traditional SatNav doesn’t fit nicely into that. Also (6)(a) refers to ” a call or … any other interactive communication function” and the primary purpose of the regulation is mobile phones. Noscituur a sociis? On the other hand though I could see the argument that the purpose of the regulation is to make the roads safer and therefore should be widely interpreted to cover potentially dangerous behaviour , though this is weakened somewhat by the fact that the regulation could have easily banned all handheld electronic devices but instead aimed primarily at mobile phones.

    1. “On the other hand though I could see the argument that the purpose of the regulation is to make the roads safer and therefore should be widely interpreted to cover….”

      Anyone would think we’d changed legal systems when we joined the Common Market?!

      Whatever next?

      Insinuations that most of our laws come from Brussels, and if we ever tried to Leave the Market the Government would be so tied up in unravelling Red Tape the Economy would Collapse, World War Three would Break Out, and all the Flower of Our Youth, female and genderfluid, as well as male, would be Killed!!!

      1. We did change legal systems, as was recognised in the thrust of the Miller judgment. Though fortunately we’re now leaving and regaining our superior English legal system, which for centuries has outshone those of the continent.

  4. I use my mobile phone as a watch. If I pick it up to see what time it is when driving, am I committing an offence? Presumably, that depends upon whether I have selected to have the time displayed on my phone updated automatically.

    1. As a non-murderer do you also have absolutely no sympathy whether a suspect was guilty or not.

      I suspect you mean if he was not using it to make a call.

      Which, I suspect, is the whole point:

      There was never any question that he wasn’t!

  5. My stand-alone Garmin GPS is, surely NOT “interactive” – that must imply two way comms – all the GPS does is to receive signals from a swarm of satellites, calculate the receiver’s position, and display this on screen. I do not send any signal back up to the satellite(s). If I drive, holding it in my hand, I think that I should be done for due care & attention, but not for Reg 110.

    Jump, a moment to my Samsung “smartphone” – it has a setting called “flight mode” for use on commercial airplanes which, I think, stops it transmitting anything. It can receive GPS signals, but not telephone calls, and can play pre-recorded music, movies and let me play silly games. Does that change the deal?

    1. I don’t think being in flight mode stops it being a mobile phone, although strangely it might stop it qualifyinv as “hand-held.” It takes us pretty much to the Jimmy Carr scenario, I think.

    1. I don’t think so! Last time I looked into this, the definition of a mobile phone included the radio frequencies it operated on! Police use different frequencies.

      1. Correct. The frequencies are very specific for what is classed as a “mobile phone” and carefully avoid the Tetra bands used by the emergency services.

  6. Another insightful and enjoyable piece. The ‘user-friendliness’ of the law – legislation.gov.uk in particular – is something I’ve often thought about, from a layman’s perspective. I’m too frugal, too impatient and too stubborn to pay somebody else to find answers for me, and I kind of enjoy the process of learning as I go down the rabbit-hole, as it were. It isn’t easy or straight-forward at all when it comes to law, though. Legislation.gov.uk barely makes any sense – and now you’ve revealed to me that it isn’t necessarily accurate. It’s difficult enough with impenetrable language, but having to account for amendments and repeals makes it so much worse; it’s very easy to get very lost very quickly, and all this assumes you know and understand which legislation is current and relevant, particularly when there are multiple acts of the same title.

    More recently, I’ve resorted to using the CPS site, although this doesn’t help when it comes to non-criminal matters.

  7. Both Nelson and Carr were done for using their phone whilst stationery at the lights. I’m not sure the dangerousness of that is equivalent to driving 20mph over the speed limit or whatever.Coriel-11

  8. I’m sure we’re all confused, but has the confusion been increased by the assumption that a traditional “hand held” (as opposed to built in) sat nav must be an interactive communicators device?

    Some can’t, or couldn’t, communicate with the Internet, and the data was preloaded, or loaded on a card, although they do communicate with GPS satellites.

    Then there’s an ancient “smartphone” I had which could obviously communicate data, but could also have a non internet communicating map loaded on a card, and which wirelessly communicated with a GPS receiver which communicated with the satellites.

    But surely the main point about this is that a driver tried to make his vehicle safe while stationary and got criminalised for his trouble.

    As in cases where drivers try to keep their brains alert by taking a swig of water at the lights, where is the public interest in prosecuting?!

    Don’t the police have more important matters to attend to, such as prosecuting internet trolls who threaten women that they wouldn’t rape them using their worst enemy’s barge-pole if they were the last woman on earth!!!

    1. Traditional hand held GPS gadgets do NOT communicate – they receive only, and then perform staggering calculations on the data that they receive, the results of which they display on screen. Although the GPS satellites receive signals, these are only from their operators, not from the customers.

      Has “inter-active” been defined? I rather think not?

      1. Yes, this is an interesting point that people seem to differ on. I’m no expert, but the consensus seems to be that some satnavs do transmit as well as receive data, but you can also use a mapping app which doesn’t transmit data at all. It just makes the whole thing even more difficult to follow, and of course entirely illogical. Why should your guilt depend on whether your satnav is transmitting as well as receiving data?

        1. It doesn’t depend on whether your satnav is transmitting as well as receiving data. It’s whether it’s performing an interactive communication function. The interpretation of ‘interactive communication function’ and ‘transmitting and receiving data’ being equivalent renders (6)(c) entirely superfluous. If transmitting and receiving data is equivalent to performing an interactive communication function then why would the regulation specify that sending and receiving written messages is as an interactive communications function? Why would it specify that sending and receiving facsimile documents is an interactive communication function? This can’t possibly be the correct interpretation of ‘interactive communication function’.

  9. “(upped from 3 points last March in a rare act of good sense by the Transport Minister Chris Grayling)”

    Why upped?

    And why good sense?!

    Is it because, just as “Speed Kills!” (it doesn’t, except WHEN there’s a collision, but lowering speeds can increase the chance of an accident sixfold – would you rather be hit at 29.9 or missed at 35?!) “Mobiles Murder!”?!

    I doubt there is any scientific proof!

    Most “studies” involve “using” a mobile in a simulator.

    To eg answer increasingly complex mental arithmetic questions until your concentration switches from pretending to drive the simulator to solving the arithmetic problems: and you crash.

    Which is taken to “prove” using a mobile, even hands-free, is dangerous!

    Of course, you could ask a lawyer to go into a simulator and mentally prepare for their most difficult case until they crashed and you would have proved that driving while being a barrister should be worth six points too!

    Or you could simply get them to work out a mental arithmetic problem such as: if one barrister a year crashes while using a mobile and a million barristers a year don’t crash while using a mobile: which is safer?!

    1. So your theory is that everyone speeds and uses their phones while driving then the roads will be a safer place? Seriously, have a word with yourself.

      1. So your theory is that everyone should ignore facts, science, truth, evidence, reason, logic, and the liken and just go with their hysterical juvenile emotive reactions aided by, where available, agenda driven propaganda, then the world will be a safer place?!

        Seriously, have a word with yourself!

        Especially if you’re a lawyer!!!

        1. “Speeds” ? I’ve always assumed that this involved “taking” whether by ingestion, injection, inhalation or otherwise a quantity of “speed” or amphetamine. Am I wrong?

  10. A friend of mine was reported for using a mobile phone while driving because a police officer saw the light from the screen reflected in her face while she was driving at night. However in the magistrates court, she got off because the phone was actually being held by the passenger in much the same way a cradle would hold the phone in hands-free mode. However looking at the wording of the regulations, there is nothing which says it must be the driver’s hand which is holding the phone, so theoretically the hand in ‘hand-held’ could belong to any other person in the vehicle. Again this is a nonsense and fortunately the magistrates saw it as such in this case. Apparently, in evidence the police officer could not state that he actually saw the phone in the driver’s hand at any stage and had just assumed that that was the case.

    1. Yes, you are quite right. On a literal reading you’re guilty even if the passenger is holding the phone. Good that the magistrates were sensible e ough not to interpret the regulation too literally.

  11. I’m afraid it’s even more convoluted than that!

    It is true that once “aligned” (receiving data from satellites and showing a stable calculated position) a GPS receiver doesn’t need to transmit to establish its position, display it on a map and produce route guidance. But then we get to the first blurring: most mobile-phone based GPS receivers use one or more of many interactive methods to speed up the alignment process, mostly involving 2-way communication with mobile phone base stations. These methods massively speed the initial alignment (which might otherwise take several minutes) and these days most phones don’t offer the option to turn them off. So in most cases the phones are in 2-way communication even when just used as a sat-nav.

    But from your explanations above I can’t see anything in the law which specifies that the prohibition of two-way communication relates only to the particular phone *function*. If I switch off all the fast-align functions on my phone its sat-nav functions will genuinely be receive-only. But while the sat-nav is running the same phone will talk to passing GSM base-stations to tell them it’s here, send messages to ask its mail server whether there are any emails for it to receive, send messages to the SMS server so that it can then receive texts etc etc. Some people might have apps checking company call-out services, stock prices or social media messages. These functions will all be running in the phone even though the USER isn’t interacting with them. So while my GPS function is running in receive-only mode, my *phone* (the physical device) is indulging in 2-way communication. Could a lawyer successfully argue that for the purposes of the Rule 110 it’s only the navigation app or the GPS function that must be in receive-only mode? I don’t know (I’m a chartered engineer rather than a lawyer), but I could strongly argue that the lawyers, judges and juries of our court system are unlikely to be competent to grasp and resolve the question either.

    I absolutely agree that the law needs redrafting from scratch – in the process they could address its silly excesses (like why it is illegal to make a phone call from a legally-parked car if the engine is running!). This is one of those pieces of stupidity with which we Brits seem to love to pepper our legislation – like the way the sole purpose of the legally-mandated features of a smoking shelter are to protect smokers from the risks of passive smoking WHILE they are having a cigarette…

    :0)

    Love the blog – keep up the good work,

    PDR

    1. Thanks for your kind words, and for pointing out some more unconsidered ?by me anyway) technicalities. They do rather confirm my conclusion that this law needs a rethink. It’s a bit silly if your guilt turns on whetber your phone is, without your knowledge, having a private conversation with a nearby phone mast.

  12. I wondered if there’s potential for ambiguity in the word ‘drive’, specified in 2(2)? It’s a bit pedantic, but seeing as the ambiguity of ‘hand-held’ is being discussed, I feel like I’m on safe ground!

    I couldn’t see meaning or supplementary provision about the word in either the Regulation or the Act. If we take the OED definition, to drive is to “Operate and control the direction and speed of a motor vehicle”, which is a positive or deliberate action. If a running motor vehicle is at a standstill with no controls engaged by the driver – so no input to direct or move the car, or to prevent it from moving or taking direction – does that create sufficient ambiguity in the meaning?

    1. There is quite a lot of caselaw on what is meant by driving – as I’m just responding quickly to your comment I haven’t got it at my fingertips, but will clear it up when I get a free moment!

      1. Many moons ago I was stuck in a traffic jam for hours not moving anywhere. It was the age before “hands free” sets. Realising I’d be home late I picked up my Nokia brick…err…phone, and I called my wife. Cue a tap on the window from PC Plod who I hadn’t seen sat behind me in his unmarked vehicle. He starts to give me a lecture on using my phone “whilst driving”. I pointed out that I wasn’t actually driving, the car was and had been stationary for at least an hour, my hands had not touched the gears or steering wheel and my feet had not operated the pedals – in what way was I driving I asked ? Cue PC Plod shouting “just put it down” and storming off back to his car.

        Did I break the law ?

    2. And if Fraser Nelson’s car employed ‘stop-start’ technology?!?

      “The system uses a computer to detect when the car is stationary or the car is out of gear, at which point it halts fuel delivery and spark to the engine. The ignition starts again when the car begins moving or the clutch is pressed.”

  13. I am not a lawyer, and therefore easily confused. But it seems to me that the The Road Vehicles (Construction and Use) (Amendment) (No. 4) Regulations 2003 define a two-way radio as any wireless telegraphy apparatus which

    (i) is designed or adapted for the purpose of transmitting and receiving spoken messages; and

    (ii) to operate on any frequency other than 880MHz to 915MHz, 925MHz to 960 MHz, 1710 MHz to 1785 MHz, 1805 MHz to 1880 MHz, 1900 MHz to 1980 MHz or 2110 MHz to 2170 MHz.

    My iPhone communicates wirelessly with my Bluetooth headphones and microphone (when I am using them) using a frequency which according to Wikipedia is between 2402 and 2480 MHz, or 2400 and 2483.5 MHz. Does that mean that my iPhone is, according to these regulations, in fact a two-way radio? Is there any way of avoiding this without making the use of police radios illegal when driving?

    1. While your iPhone is communicating with the mic and headphones on Bluetooth it is also using some of the frequencies listed in (ii) so No, it isn’t a 2-way radio. Your iPhone communicates and hand-shakes with the network on those frequencies even when you are not in a call. Si it remains a hand-held mobile telephone and is definately not a 2-way radio.
      Unlucky.

      1. I would agree with this argument if the regulations said under (5)(d)(ii): “and does not operate on a frequency in any of the following ranges … “, but they define a two-way radio as apparatus which operates on any frequency other than those listed, presumably even if it also operates using one or more of the frequencies listed.

        As an analogy I imagine it like this: the driver of the bus to Woking wants to set off after some confusion at the bus stop. He says to the passengers: “I cannot leave if there is anyone on this bus not going to Woking”. One passenger (out of many) puts up his hand and says “I’m not”. Can the driver leave or not?

        Anyway, I am reluctant to point to a hole in legislation which I believe serves a useful purpose, so if you suspect I am right, please feel free to delete this post.

        1. Believe?

          I suppose fleecing not policing cuts costs, boosts revenues, and provides a generous surplus to pay for size 14 stilettos and a variety of shades of nail varnish!

          But what happens when you’ve driven all the motorists out of their cars and onto buses and bikes and lost the £50 Billion in extra additional road related taxes motorists pay on top of their ordinary citizens taxes each and every year, something like £200,000 for every single mile of road per annum?!

          Amounting to something like a seventh of all taxes raised and half the NHS budget.

          And, no, Council Tax doesn’t pay for roads, in fact it only pays for a fraction of their budgets, while roads are funded by government capital and maintenance grants, effectively paid for by drivers.

          And before anyone chimes in with “hypothecation”, is any government going to slash the NHS budget in half to enable “road” expenditure to continue on bus and cycle lanes and pedestrianisation, never mind the 50% operating subsidy to public transport or the “investment” in maintaining and expanding the running of local bus services on heavy rail infrastructure?!

          Especially as they will have to expand passenger capacity by a factor of ten, but to cater for passengers whose needs are usually the least economic to service, or rather most uneconomic (but I suppose giving. 90% of the population their own little 2 seater bus and driver would solve the unemployment problem, although it would play havoc with the immigration figures and housing shortage!!!).

          And as for those desperate to bring up “environmental costs” “transport pollution” is mainly from diesel trains, the power stations that fuel electric trains, and ships and planes.

          And “traffic pollution” mainly from diesel buses, taxis, the power stations that fuel “electric” buses and trams……!

          But I suppose we can offset all that against the saving on the massive costs to the economy of deliberately created traffic congestion, as currently policed by our Fleece Force, sorry, Police Service!

          Oh, and as I’ve pointed out earlier, a safety measure isn’t if it’s counterproductive!!!

  14. I have an oldfashioned satnav [TomTom] which is certainly not an interactive device. It receives but does not send, just as my car radio does.

    I occasionally jab it with a finger. Is this legal? What is the difference between jabbing the satnav screen and reaching down to switch the lights on, or change stations on the radio?

    1. It doesn’t meet the description of a hand-held mobile telepone in the regulation so reg 110 doesnt apply to your navigation system.

  15. I know the guy who drafted this regulation.
    He did it like this.
    1. You can’t use a mobile telephone in our hand while driving. Use wasn’t defined so it encompases all use.
    2. A mobile telephone is one of these…see description in regulation.

    2 is not part of the offence and a hand-held mobile telepone remains a hand-held mobile telephone if it meets the description in the regulation. The offence is made out in 1.

    Simple, so why commplicate it?

    1. For the numerous reasons set out by multiple people:

      Why is it OK to use a stand alone sat nav?

      Why is it not OK to use a sat nav when it happens to also be a mobile phone?!

      Why is it not OK even when parked but with the engine running (to eg power it when the battery is flat), ditto taking a swig of water to keep your brain alert….?!?!

      Why is it OK to use a two way radio?!?!?:

      Why is it OK to use a police two way radio/mobile?!?!?!?!

      And I’ll add, as I don’t think it’s been raised:

      Why is it OK to use a police two way hand held PUSH TO TALK radio CONSTANTLY while attempting to conduct a HIGH SPEED CHASE in an URBAN RESIDENTIAL ENVIRONMENT?!?!?!?!?!?!!!!!!!!!!!

      It’s not the questioners that are complicating things here:

      It’s the people who insist on producing such an endless stream of anti-motorist laws that they don’t even have time to draft them properly.

      You might want to ask your “friend” what was wrong with dangerous driving, careless driving, plus speed limits to assist the inexperienced or non local driver, and to facilitate the prosecution of those driving MARKEDLY IN EXCESS of the SAFE SPEED for THE ROAD!

      (Note, NOT the limit! And apologies if I’ve not quoted the original official guidelines for the use of speed limits there 100% correctly. I was once challenged to prove them and found I’d imagined they’d said “…….and CONDITIONS”!)

  16. Re: legislation.gov.uk and “I think they have probably given up trying.”

    It seems you’re right. I recently inquired via my MP about their timescale for ensuring all legislation was up to date.

    The Minister wrote back and said that it’s “not possible to give a precise date” for resolving the 8.7 per cent of all primary legislation that’s not provided in its amended form. A shocking state of affairs.

    I’ve posted the response at https://twitter.com/MarkPrich/status/947839102539399168

  17. A brilliantly informative article. Regarding the use of sat-nav apps would you not need to show that the rest of your phone was i.e. On airplane mode and incapable of being interactive/receiving and transmitting data, to establish a successful defence *if* you had held it in your hand ?

  18. CNH touches on (and Mr B J Mann throws punctuation at) the much more important point, apparently missed or deliberately ignored by the drafters of this badly-designed law. It is this: the problem with mobile phones is not whether or not they are “communicating” or “sending data” or whatever; it is that they demand the driver’s attention, and it is that dilution of attention on the task in hand that is the principal danger.

    I once participated in a conference call by hands-free mobile phone. The call started as I passed Uxbridge on the M40; when I arrived at the M42 near Birmingham I had literally no memory of anything I had done, or seen on the road, since the call started. From that day on until I retired I turned my phone off when driving.

    Any electronic device in a car is a danger; there is a case for prohibiting them all, hand-held or otherwise.

    1. There may or may not be a case for prohibiting all electronic devices in a car, hand-held or otherwise, but i’ve never seen it logically argued, never mind proved, as with anything else to do with driving safety.

      It’s all fact-free juvenile emotive guilt-inducing hysterical shroudwaving won’t somebody think of the children emotional blackmail.

      To put things in perspective I once heard a talk by a real road safety expert who pointed out that the top places in the league table of traffic planners’ favourite road “improvements” were identical to the top placeholders in the league table of most dangerous road features (eg deliberately obscuring approaching drivers’ view of traffic on a roundabout to “improve” safety by “making” them slow down/stop).

      Note I also once saw an advert for Trainee Road Planners – no experience or qualifications required – just a keen “interest” in transport “issues”?!

      Oh, and a traffic planner is not a road, traffic. highways, or any other kind of, engineer!

      But I digress:

      It it safer not to equip cars with a means of knowing the weather and traffic conditions ahead?

      Is it safer to rely on paper maps and memory (and suffer increased journey times, frustration, anger, tiredness, speeding to make up time…..)?

      Is it safer, due to being late to get to a meeting/ home to the family at the end of a long day, due to not knowing about worsening weather on your selected route, holdups, being lost, to make a quick call to notify/ explain/ apologise/ cancel, or to speed up for mile after mile while getting increasingly frustrated and distracted?!

      And is it safer to drive in silence while fresh, awake and alert, but on an incredibly unstimulating route with a ludicrously low limit, so you fall asleep from boredom?

      Or increase the level of stimulation by turning on the radio (or exceeding the limit)?!

      And if anyone doubts that it’s possible to fall asleep from boredom while driving:

      Why is it a recognised danger in every other transport and non transport related safety field from production lines through rail to flying, and including fields such as nuclear power station management.

      Why do trains have dead man’s handles (it’s NOT – mainly – in case the driver dies!)?

      Why did HGV driver fatalities leap 20% when speed limiters were introduced?

      Why do long stretches of motorway that could be dead straight get designed with bends in them?

      (Note on those long, straight, Australian roads drivers don’t crash into the only tree for a hundred miles because of target fixation, it’s because all the drivers that fall asleep between the trees and run off the road don’t have a tree handy to run into!)

      As for forgetting, it doesn’t mean you weren’t driving safely, after all you arrived safely, and presumably without mishap, as you would have noticed, even if you noticed too late.

      In fact the reason you remembered nothing was because your journey was so boring and uneventful, apart from the conference call which took up all your spare mental capacity.

      That’s not to say someone else wouldn’t be too distracted and have an accident.

      But most drivers constantly tune in and out of what’s on the radio, in car conversation, phone calls… as and when the driving load increases and they have to devote more mental capacity to driving.

      For example I know that dozens, if not hundreds, of times when my children were young I’d be talking to them or listening to the radio, and the next thing I knew they’d be complaining I was ignoring them, or ignoring a question about something on the radio I hadn’t even heard, because I’d have been busy dealing with a more complicated bit of driving.

      The simple fact is we can cope with five things at once while driving, and we prioritise what we deal with. If a sixth thing crops up we either ignore it or slot it into the most appropriate place in the list, pushing less important items down the priority ranking.

      This is why road “safet” “improvements” are so often counterproductive, coupled with the fact no one seems to know how the eye actually works.

      We don’t drive in a physics lab, but a real world behavioural science lab, where all too often what little research there is is tailored to suit an agenda.

      So we end up crashing, seriously, even fatally, at a “safe” speed, when, left to our own devices (sorry), we could have avoided the accident despite “speeding”!

  19. You’d of thought by now tech companies would of found a way to stop a phone being used illegally whilst in a car. But evidently they don’t care and successive governments deem themselves too weak to stand up to them. Shame.

    1. Perhaps some kind of brain implant that can detect if the same person is driving and speaking on the phone which can then cross check if that person is also holding the phone?!

  20. On Thursday morning 18th of January.
    I was pulled over by police.
    I was travelling home from work at about quarter past midnight.
    I approached a roundabout and stopped my car to change the song on my phone.
    There were no other road users on the road at that time.
    I changed the track and pulled off, as I did so I noticed a police car behind me so I pulled over.
    The lady officer came up to my window and asked me immediately what I was doing on my phone, I explained I was changing the music.
    I have been ticketed for this incident.
    I am new driver just going into the second year of driving.
    I was told at the time I could get 6 points or attend a mobile awareness driving course or if it’s a first offence there could be no punishment.
    However now researching further it seems the only outcome for this is 6 points and a £200 fine.
    I realise now that the engine of my car had to be switched off before touching my mobile at all.
    My mobile was attached to the magnet holder and all I did was navigate it to find a song.
    I feel the punishment I am about to be given considering the circumstances is disproportionate.
    The fact my car was stationary.
    There were no cars on the road and I posed no danger.
    I did not use the phone for any other purpose but to find a song to accompany for the rest of my journey home.
    If there was traffic on the road I would certainly not be using my phone at all and going forward now I will ensure my car is parked in a safe location, with the engine switched off before doing anything with my phone
    I have sought advice form a traffic solicitor (Patt rein Law) who has advised that the wording of the law states clearly, that to be found guilty of lllthis type of offence it must be proven that the phone was used for interactive telecommunication which includes phone calls, text-messages, emails etc. They have advised using the phone as an MP3 player is not an offence.
    I do not wish to say I have done nothing wrong but as I mentioned previously I feel that the punishment is massively disproportionate in this instance.
    I am not sure whether I would be getting the same outcome and going thorough through so much stress if I had stopped to change the radio station using my stereo.
    The solicitor says that this could be stopped befor going to court as the burden of proof would be on the police to show that the phone was being used as an interactive function at the time of the alleged offence.
    My phone is an IPhone and I constantly have 4g on and have music streaming through the app. What is the likelihood of a successful defence here? Baring in mind that it will cost over a £1000 in legal fees if it went to court but I’m thinking that this might be the better option over losing my licence and having to go through the motions of obtaining a new one as that would be very disruptive to my livelihood.

  21. Isnt the legislation though just an extension of ‘not being in proper control of a vehicle’ so that could always be added as an ‘in the alternative’ offence?

    By banning the use of hand held mobiles you save having to argue if its use was in fact causing the driver not to ‘be in proper control’

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