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Mobile Phone "Driving" Case Law
TonyS
post Thu, 21 Sep 2017 - 13:05
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In a recent thread in the Criminal section there was a link to CPS guidance on mobile phone offences. There is an interesting snipped on the definition of "driving" which is something that seems to be a matter of speculation and hearsay among the public if not the professionals ..
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Under existing case law a person may still be driving whilst the engine is running and the vehicle is stationary. This means that an individual stopped at a traffic light could be prosecuted for a mobile phone offence. The intention of the legislation is to promote road safety and so it will not normally be in the public interest to prosecute this offence if the driver has safely pulled over and stopped before taking hold of the phone.

Does anyone know more about the case law referred to in the first sentence? The other point of interest is that the last sentence suggests that they think a car safely pulled over and stopped would still be counted as "driving", although the say probably not in the public interest to prosecute.
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post Thu, 21 Sep 2017 - 13:05
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The Rookie
post Thu, 21 Sep 2017 - 13:50
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It's for a court to decide what is driving for the purposes of the act and in the exact circumstances of each case, the CPS 'guidance' is just that and neither right nor wrong.

Stopped in traffic with engine running (or only off via a start stop system) is almost certainly driving.

Stopped at the roadside with the engine running (or start stopped) and held on the foot brake only is more likely to be driving than.....

Same scenario but in P or hand brake (or EPB) on.

Same scenario but engine off is almost certainly not driving.

The issue for legislation is covering all the permutations would be incredibly cumbersome, so for example start stop was very rare when it was drafted so it could have mentioned 'engine running' which would now be a 'red herring' hence why it is worded as it is (correctly in my opinion, others disagree).


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TonyS
post Thu, 21 Sep 2017 - 14:47
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QUOTE (The Rookie @ Thu, 21 Sep 2017 - 14:50) *
It's for a court to decide what is driving for the purposes of the act and in the exact circumstances of each case, the CPS 'guidance' is just that and neither right nor wrong.

Understood. But my point is that they refer to case law under which a person was found to be "driving" when the vehicle was stationary. What I was asking was whether anyone knows what that case law is. Particularly as their last sentence implies that this case law may also cover safely parked but still considered "driving".
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fedup2
post Thu, 21 Sep 2017 - 19:26
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QUOTE (TonyS @ Thu, 21 Sep 2017 - 15:47) *
QUOTE (The Rookie @ Thu, 21 Sep 2017 - 14:50) *
It's for a court to decide what is driving for the purposes of the act and in the exact circumstances of each case, the CPS 'guidance' is just that and neither right nor wrong.

Understood. But my point is that they refer to case law under which a person was found to be "driving" when the vehicle was stationary. What I was asking was whether anyone knows what that case law is. Particularly as their last sentence implies that this case law may also cover safely parked but still considered "driving".

As i understand it your driving till engine off.
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The Rookie
post Thu, 21 Sep 2017 - 20:46
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QUOTE (TonyS @ Thu, 21 Sep 2017 - 15:47) *
QUOTE (The Rookie @ Thu, 21 Sep 2017 - 14:50) *
It's for a court to decide what is driving for the purposes of the act and in the exact circumstances of each case, the CPS 'guidance' is just that and neither right nor wrong.

Understood. But my point is that they refer to case law under which a person was found to be "driving" when the vehicle was stationary. What I was asking was whether anyone knows what that case law is. Particularly as their last sentence implies that this case law may also cover safely parked but still considered "driving".

There is a lot of case law around what may or may not be driving, and it depends on the offence alleged.

There is case law that sitting in a car with the engine off was driving for the purposes of a driving over the prescribed limit but a court is less likely to find that relevant for a mobile phone offence.

Fedup, is that engine switched off or engine stopped by a start stop device or a hybrid with the internal combustion engine off and driving up the road on electric only? 'Engine off' by itself is now meaningless.


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glasgow_bhoy
post Thu, 21 Sep 2017 - 21:19
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QUOTE (The Rookie @ Thu, 21 Sep 2017 - 21:46) *
Fedup, is that engine switched off or engine stopped by a start stop device or a hybrid with the internal combustion engine off and driving up the road on electric only? 'Engine off' by itself is now meaningless.

I always remove the keys from the ignition now to be safe. If that is indeed the standard where you are no longer in control of the vehicle, then people with keyless ignitions have yet another argument.

And how would the police prove the car has been stopped by means of Stop-Start? The minute I unlock the doors when the car is in the Stop-Start process it makes me start the car manually using the key. Therefore all you have to do is unlock the door and the car is in 'off' mode.

This post has been edited by glasgow_bhoy: Thu, 21 Sep 2017 - 21:20
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DancingDad
post Thu, 21 Sep 2017 - 22:11
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What a tangled web ?

According to parking lore, if you are stopped on a yellow line while using a mobile phone, you are parked, waiting and thus liable to a PCN from a passing CEO.
At the same time you are getting an FPN from a passing copper for using a mobile phone while driving!

I'll stick to Bluetooth with the phone firmly in my pocket.
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Fredd
post Fri, 22 Sep 2017 - 02:31
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QUOTE (glasgow_bhoy @ Thu, 21 Sep 2017 - 22:19) *
QUOTE (The Rookie @ Thu, 21 Sep 2017 - 21:46) *
Fedup, is that engine switched off or engine stopped by a start stop device or a hybrid with the internal combustion engine off and driving up the road on electric only? 'Engine off' by itself is now meaningless.

I always remove the keys from the ignition now to be safe. If that is indeed the standard where you are no longer in control of the vehicle,

"Driving" and "being in control" are not only very different things but have meanings specific to the offences for which the terms are used. There's no single definition of driving that applies wherever it's found in legislation.


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TonyS
post Fri, 22 Sep 2017 - 07:18
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Engine running doesn't seem to be a particularly useful distinction. For example supposing the car's being towed, or the engine's conked out and you're coasting to a stop. Or conversely engine ticking over while you look under the bonnet.
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fedup2
post Fri, 22 Sep 2017 - 08:24
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QUOTE (TonyS @ Fri, 22 Sep 2017 - 08:18) *
Engine running doesn't seem to be a particularly useful distinction. For example supposing the car's being towed, or the engine's conked out and you're coasting to a stop. Or conversely engine ticking over while you look under the bonnet.


Poor expamples.

coasting is driving.
looking under the bonnet is hardly driving.
but being towed is obviously driving if it needs input from a driver.If it doesnt you shouldnt be there.

This post has been edited by fedup2: Fri, 22 Sep 2017 - 08:26
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superSmiffy
post Fri, 22 Sep 2017 - 08:34
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QUOTE (TonyS @ Thu, 21 Sep 2017 - 14:05) *
In a recent thread in the Criminal section there was a link to CPS guidance on mobile phone offences. There is an interesting snipped on the definition of "driving" which is something that seems to be a matter of speculation and hearsay among the public if not the professionals ..
QUOTE
Under existing case law a person may still be driving whilst the engine is running and the vehicle is stationary. This means that an individual stopped at a traffic light could be prosecuted for a mobile phone offence. The intention of the legislation is to promote road safety and so it will not normally be in the public interest to prosecute this offence if the driver has safely pulled over and stopped before taking hold of the phone.

Does anyone know more about the case law referred to in the first sentence? The other point of interest is that the last sentence suggests that they think a car safely pulled over and stopped would still be counted as "driving", although the say probably not in the public interest to prosecute.

There is a lot of case law on what is or is not driving.
To give you it all would require reproducing whole sections of Wilkinson's Traffic Law I think.
Someone may list up the cases perhaps. Buy a second hand one or subscribe online.
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The Rookie
post Fri, 22 Sep 2017 - 09:19
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QUOTE (glasgow_bhoy @ Thu, 21 Sep 2017 - 22:19) *
And how would the police prove the car has been stopped by means of Stop-Start?

As it doesn't necessarily matter, it's mostly irrelevant, it comes down to whether or not the court is satisfied that at the relevant point in time the person behind the wheel was 'driving' or just sitting in a car. You could be sat at a traffic light and switch off the ignition while the lights are red and the court may well decide taht was driving as you are actively waiting for the lights to change (and I'd agree).


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samthecat
post Fri, 22 Sep 2017 - 09:41
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Trying to nail down a fail-proof set of rules for legislation that has specifically been written to be open to interpretation is a risk.

To be safe, if you are in the car and on a road leave the phone alone.

If you fancy pushing your luck by trying to show you were not driving when a court could decide you were and give you a hefty penalty, well that's up to you.....


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TonyS
post Tue, 26 Sep 2017 - 08:36
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QUOTE (fedup2 @ Thu, 21 Sep 2017 - 20:26) *
As i understand it your driving till engine off.

QUOTE (fedup2 @ Fri, 22 Sep 2017 - 09:24) *
QUOTE (TonyS @ Fri, 22 Sep 2017 - 08:18) *
Engine running doesn't seem to be a particularly useful distinction. For example supposing the car's being towed, or the engine's conked out and you're coasting to a stop. Or conversely engine ticking over while you look under the bonnet.

Poor expamples.

On the contrary they are good examples, they show that whether the engine is running or not makes a poor definition of "driving".

QUOTE (superSmiffy @ Fri, 22 Sep 2017 - 09:34) *
There is a lot of case law on what is or is not driving.
To give you it all would require reproducing whole sections of Wilkinson's Traffic Law I think.
Someone may list up the cases perhaps. Buy a second hand one or subscribe online.

Could you give just one, one that's specific to mobile phone use or at least relevant to it?
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andy_foster
post Sat, 30 Sep 2017 - 17:28
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As far as I am aware, there is no case law on what constitutes driving (or using for that matter) for the purposes of the mobile phone legislation.


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The Rookie
post Sat, 30 Sep 2017 - 17:35
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QUOTE (andy_foster @ Sat, 30 Sep 2017 - 18:28) *
As far as I am aware, there is no case law on what constitutes driving (or using for that matter) for the purposes of the mobile phone legislation.

That is my understanding, although now it's a six pointer that may change, it wouldn't stop other case law being pursuasive though of course.


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There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

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