Robert Skinner of our Criminal Department considers the law and defences in relation to the offence of using your mobile phone when driving.
Section 110 of The Road Vehicles (Construction and Use) Regulations 1986 as amended provides that ‘no person shall drive a motor vehicle on a road if he is using…..a hand-held mobile telephone; or a hand-held device….. which performs an interactive communication function by transmitting and receiving data’.
It is also an offence for any person to cause or permit any other person to drive whilst using such a device. Passengers therefore may be prosecuted for handing a phone to the driver to use. If you are supervising a provisional licence holder, you will also commit the offence if you use such a device whilst the vehicle is being driven.
Driving is not specifically defined in Section 110 however existing case law regards a vehicle as being driven even where it is stationary and the engine running. This will include whilst it is stopped at traffic lights or stationary in traffic. It is doubtful that a defence would arise if the engine were not running in these circumstances given the advent of stop start technology and if the vehicle is en route somewhere and has not finished its journey, the courts will likely infer that it is being driven.
If you need to use your device therefore you should ensure that you park up and switch the engine off.
Interactive communication function is defined as including the sending or receiving of oral or written messages, facsimile documents, still or moving images and as accessing the internet. Whilst the device is being used for such a purpose, it is an offence to hold or touch it. It is permissible therefore to make a hands-free call or to send a voice activated text however you must always be in proper control of your vehicle. Other offences may apply if you are not or if you are distracted and the standard of your driving suffers.
It follows that if you use your device for a non interactive communication function, you will not commit the offence. This could include for instance using it as an MP3 player, using it as a voice recorder or operating the camera functions. If playing music it is important to ensure that you are playing from your music library stored on the device. If you play via Spotify for instance you will in fact be accessing the internet and will be caught by the section.
A specific defence is provided for where the device is being used in a genuine emergency to call 999 or 112 and it is impractical to cease driving.
The offence is punishable by £200 and six penalty points when dealt with by way of a fixed penalty. If dealt with at court, there is discretion to disqualify and the maximum fine is £1,000 (£2,500 if the vehicle is a bus, coach or any heavy goods vehicle).
If you are using your device in your car and are spotted by police or photographed by another road user and reported, you are likely to be prosecuted whatever explanation you give, if any, at the time. It is obviously best therefore not to be tempted to use any function of your device whilst driving.
If you do and you are prosecuted and you think that you may have a defence or if you would like to discuss any motoring offence then please contact us call and speak to our motoring specialists Robert Skinner or Shaun Newey.
Charles Strachan Solicitors have a legal aid franchise therefore if your means are below a certain threshold and your case is serious enough or complex it may be possible to secure legal aid funding to defend your case