Director of Public Prosecutions v Barreto [2019], Mobile phone use Options

[henrik777]

https://www.bailii.org/ew/cases/EWHC/Admin/2019/2044.html

Lady Justice Thirlwall:

This is an appeal by way of case stated from a decision of the Crown Court sitting at Isleworth quashing the respondent's conviction for driving a motor vehicle while using a hand-held mobile telephone, contrary to Section 41D of the Road Traffic Act 1988 and Regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986. The alleged offence took place on 19th August 2017. The respondent had been convicted after a trial in the Magistrates' Court on 20th July 2018. His appeal was allowed on 15th October 2018.
In summary: the respondent was seen filming an accident scene as he drove past it. He was using the camera on his mobile phone to do so. The question in this case is whether the filming constituted a breach of the regulations. It is the appellant's case that the regulation prohibits all use of a mobile phone while driving. It is the respondent's case that the regulations are directed only to the use of phones and other devices for the purposes of interactive communication.
The answer to this appeal lies in the interpretation of legislation in the terms that Parliament chose to enact it rather than as it might be assumed to be.



......


CONCLUSION
It would have been much better to have drafted legislation which was less cumbersome but its effect is clear. The legislation does not prohibit all use of a mobile phone held while driving. It prohibits driving while using a mobile phone or other device for calls and other interactive communication (and holding it at some stage during that process). I do not accept Mr Mably's submission that this interpretation is incoherent. On the contrary it coincides with and reflects the purpose of the legislation.
It follows that the activity of the respondent did not come within Regulation 110 and the Crown Court was right to quash the conviction.

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[mike5100]

Very interesting. and this touches on another thread that is running in which I asked about whether using the mobile phone as a satnav (and handling it while, say, stopped at traffic lights) was an offence. I think the above case would clearly argue that it is not an offence as no interactive communication is being conducted. However point 11.6.c.iv does raise an anomaly - most of the time my phone/satnav is using information stored in its RAM but if I have it set to update routes via ActiveTraffic, it is receiving information from the internet (I think) and so presumably would be a breach. That leaves users in the somewhat crazy situation of having to switch off a valuable safety related feature of their satnavs in order to be sure of staying on the right side of the law.
Mike

[The Slithy Tove]

That leaves users in the somewhat crazy situation of having to switch off a valuable safety related feature of their satnavs in order to be sure of staying on the right side of the law.

Only if you need to hold the phone while doing whatever with the sat nav feature. If it's cradled, which it ought to be, then no offence, surely?

[andy_foster]

The High Court appears to have given a 'purposive' interpretation to the legislation. I do not think that such an interpretation would be compatible with a suggestion that a device communicating with remote servers in the background somehow constitutes interactive communication.

[Redivi]

The disgrace is that it's taken sixteen years for a higher court to decide what "using" means

It was inevitable that turning this into a six-point offence would make it worthwhile for somebody to appeal

[cp8759]

It's also inevitable that the legislation will now have to be amended: it's not really feasible to expect the police to prove that a phone was being used for interactive communication (even if it's held up to your ear, you might be listening to a recording, or recording something using the dicta-phone function and playing it back), which means the legislation is for all intense and purposes now useless.

I suspect as is often the case the government will go for the sledgehammer approach and they'll just make it illegal to hold a phone at all while driving, so while Mr Barreto has succeeded, this is hardly going to lead to an advancement of the law. It means that in all likelihood if your phone falls out of its cradle and onto your leg and you move it to the passenger seat without even looking at it, you could be prosecuted for holding the phone.

[Redivi]

It's a well-reasoned decision that mirrors the original guidance notes to Parliament

The sledgehammer approach will create the anomaly that moving a phone is different from moving a packet of sweets or a bottle of water

It might delight the Mail readers (see the Comments section) but wouldn't it be easier to have "Not in proper control" and "Driving without due care" as alternative charges ?

This post has been edited by Redivi: Thu, 1 Aug 2019 - 07:21

[mike5100]

It's a well-reasoned decision that mirrors the original guidance notes to Parliament

The sledgehammer approach will create the anomaly that moving a phone is different from moving a packet of sweets or a bottle of water

It might delight the Mail readers (see the Comments section) but wouldn't it be easier to have "Not in proper control" and "Driving without due care" as alternative charges ?

That's what I was thinking. Surely if the police had thought about it, the driver holding his 'camera' while filming as he moved past the accident should have been charged with careless driving (at least), or are they preferring the mobile phone offence because its penalties are higher?
On the other point - is it currently OK to handle the phone while it's in a cradle - ie pressing a button on the screen to answer a call? And what constitutes a cradle? (I have devised a neat modification of a commonly available fascia bracket so that it holds a recharging pad which has one of those sticky black pads on. I can simply push-stick my phone to this device and easily remove it - nothing actually clamps it in place).
Mike

[southpaw82]

It was inevitable that turning this into a six-point offence would make it worthwhile for somebody to appeal

Of course, the appeal in this case was brought by the DPP.

[The Rookie]

So Jimmy Carr was correctly found not guilty (assuming he was doing as he said he was doing) and it wasn't a miracle 'Mr Loophole' acquittal then.

What is good here is that it narrows it down more than perhaps it actually had to while declining the appeal, well done to LJ Thirlwall.

[mike5100]

That leaves users in the somewhat crazy situation of having to switch off a valuable safety related feature of their satnavs in order to be sure of staying on the right side of the law.

Only if you need to hold the phone while doing whatever with the sat nav feature. If it's cradled, which it ought to be, then no offence, surely?

well a very possible scenario is that you get stuck at lights in busy traffic, you take your phone from your pocket with the intention of putting it into the cradle to find alternative routes via the ActiveTraffic function and perhaps you need to plug in the charging cable at the same time. All this just as the vigilante cyclist from the other thread goes past your driver's window and captures this on film which he (presumably) then sent to the police.
Mike
(PS if Andy Foster is correct in the post above, then this situation would be covered but only probably after another fight)

[The Rookie]

In that scenario the court would (as it did here) find as a matter of fact whether the 'driving' and 'using' parts of the offence were made out, what this case does do is set some precedence that narrows what the 'using' means.

Of course it may also mean an increased use of careless/not in proper control in similar sets of circumstances.

[mike5100]

In that scenario the court would (as it did here) find as a matter of fact whether the 'driving' and 'using' parts of the offence were made out, what this case does do is set some precedence that narrows what the 'using' means.

Of course it may also mean an increased use of careless/not in proper control in similar sets of circumstances.

And quite right too. However, in truth I'm more of a risk if involved in a hands-free telephone conversation than in manhandling a phone for any non-interactive purpose, but current legislation allows us to have our attention distracted by family or work problems while in complicated driving situations. (no different I guess from having your other half having a go at you from the adjacent seat :-) )
Mike

[cp8759]

...wouldn't it be easier to have "Not in proper control" and "Driving without due care" as alternative charges ?

Those already are alternative charges, but they're much harder to prove. One of the reasons for traffic offences being very black and white is that if the evidential burden becomes to high, the legislation becomes ineffective because it's too difficult to enforce.

Of course, it would be much better if we abolished all speed limits and drivers were only ever prosecuted for driving too fast for the conditions rather than for exceeding some arbitrary number, but it's just seen as far too much hassle.

[mike5100]

...wouldn't it be easier to have "Not in proper control" and "Driving without due care" as alternative charges ?

Those already are alternative charges, but they're much harder to prove. One of the reasons for traffic offences being very black and white is that if the evidential burden becomes to high, the legislation becomes ineffective because it's too difficult to enforce.

I guess you are right. If every mobile phone use needed a helicopter it would certainly increase the taxes we all pay driver prosecuted for holding an apple
Mike

[DancingDad]

If the guy had been filming with a video camera and charged with not being in proper control or careless or whatever along those lines, I have little doubt a conviction would have been obtained and upheld if appealed.
Which may make the police more careful on what they charge people with in future and not just jump on "it's a phone and handheld, 6 points"
Can't see the law being re-written unless government decides to make it an absolute offence to hold a phone.

[cp8759]

Can't see the law being re-written unless government decides to make it an absolute offence to hold a phone.

That's the outcome I predict. Anyone and their dog can now defend a mobile phone charge by saying they weren't using the phone for an interactive communication purpose, and put the police to proof that they were. The police won't have any proof unless the driver was stupid enough to make a confession under caution.

Of course, the police could just seek a RIPA warrant to extract evidence from the phone, but then you get into issues of human rights and proportionality.

A simpler solution might be a one line amendment to say that for the purposes of the regulations, the use to which a mobile phone is put need not be an interactive communication purpose (i.e. simply reversing the HC judgment).

[southpaw82]

Well, there’s a shock.

[The Rookie]

The irony is that the research carried out before the law was introduced told them this, it wasn’t the holding the phone that was dangerous it was focusing on a call at the expense of the driving. And that hand held were actually safer as people tended to keep the calls short.

[mike5100]

The irony is that the research carried out before the law was introduced told them this, it wasn’t the holding the phone that was dangerous it was focusing on a call at the expense of the driving. And that hand held were actually safer as people tended to keep the calls short.

Yes it's pretty obvious (to me at least) that trying to deal with a verbal phone interaction whilst driving, is the distracting feature, not whether it's hands-free or hand-held. My phone sits in a cradle and is IMHO perfectly safe for use as a music centre, satnav and incoming text messages. In the unlikely event of this new legislation proceeding I hope they don't throw the baby out with the bathwater.
Mike