Recent items in the media concerning the use of mobile phones while stuck in traffic and the use of satellite navigation (satnav) apps on mobile telephones in vehicles has revealed a degree of uncertainty and inconsistency over the law and its application. There have been reports that in some parts of the country, drivers are being convicted, or at least warned, for just touching the device while driving and the Crown Prosecution Service’s (CPS) advice admits that there has been debate about exactly what “use” means.
Regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986 prohibits a person from driving, or causing or permitting another to drive, a motor vehicle on the road while using a hand-held mobile telephone or other hand-held devices of a kind specified. This regulation was added by the Road Vehicles (Construction and Use) (Amendment) (No. 4) Regulations 2003 and extends to those supervising provisional licence holders while they are driving on the road. The regulation does not apply to devices built into the vehicle or secured in a cradle.
In addition to hand-held mobile telephones, the regulation also includes other hand-held devices of a kind specified. While the term “hand-held mobile telephone”, as opposed to “hand-held device of a kind specified”, is not defined, it would clearly be reasonable to assume its normal meaning. The other devices are defined as “a device, other than a two-way radio, which performs an interactive communication function by transmitting and receiving data”.
Specifically excluded are two-way radios using wireless telegraphy providing they do not operate on a frequency listed in the regulation. The frequencies used by CB radio are not listed in the regulation and it is apparently, therefore, not an offence to talk on one of these devices even if it is held in the hand to do so.
An “interactive communication function” is further explained to include:
- sending or receiving oral (ie telephone calls) or written messages
- sending or receiving facsimile documents
- sending or receiving still or moving images
- providing access to the internet.
This list is not exhaustive, so any other use that involves making or receiving a call or any other interactive communication function involving accessing any sort of data, whether with a person or not, would provide grounds for prosecution.
Illegal use may be regarded as holding the device while talking or listening, pressing buttons or the touchscreen or looking at the screen. This last having been established in a recent case where a conviction resulted after a driver picked up a phone that he was using as a satnav, which had fallen from its cradle, and glanced at the screen before placing the phone in the door pocket.
The exact meaning of “while driving” may be a source of confusion to many ordinary motorists but should not be to professional drivers for it is established by case law to be exactly the same meaning as in the drivers’ hours legislation. Driving means being at the steering wheel for the purpose of controlling the vehicle with the engine running. It is the last bit that has caught out many drivers because, even though the vehicle may be stationary in a traffic jam with no possibility of moving, as long as the engine is running, the driver is still “driving”. If the driver in such a situation turns off the engine then it appears that no offence is committed by using a hand-held device, though that doesn’t mean that one cannot be alleged.
Using a hand-held mobile phone while driving is an offence under s.41 of the Road Traffic Act 1988 and since 1 March 2017 has been penalised by a fixed penalty of £200 and six driving penalty points. If the case is dealt with in court, a maximum fine of £1000 may be imposed, rising to £2500 for the driver of an HGV. Magistrates also have the discretion to impose a disqualification from driving. In the case of an HGV driver, the Traffic Commissioner can also suspend the driver’s vocational entitlement for 21 days for a first offence, double that for a second offence, and so on.
In the case of uncertainty like this, the only safe course to adopt is not to do it at all. Drivers should at least:
- place any hand-held device firmly in a cradle upon entering the vehicle
- complete any satnav programming or playlist selection before moving off
- only initiate calls if absolutely necessary and then only when traffic conditions are suitable
- use auto-answer if available
- keep talk time to a minimum
- never use the internet or text
- if in doubt, don’t.
Transport managers should also ensure that similar appropriate advice is given to all drivers and check to see it is being followed.
If you require assistance, please contact Walker Health and Safety Services.