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.



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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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[Richy320]

Good luck enforcing that!

If your phone is in a bag in the boot of your car, connected to your car by bluetooth, and your passenger is making a phone call I'm struggling to see how that could ever be enforced!

They need to ban chatting with your passengers, kids misbehaving in the car, listening to music in the car ..... driving the car!

[Jlc]

kids misbehaving in the car

Gets my vote.

But we'll all have autonomous cars soon where they just drive themselves within the limit and no wrongs can be done...

[Atomic Tomato]

…...kids misbehaving in the car......

Yep, my other-half once managed to scrape the car against a car park pillar whilst the kids were playing up in the back.

[Steve_999]

Is this not yet another example of over-regulation? It seems to me that the first answer of any government these days to any perceived problem is to either ban it, regulate it or tax it. If they can manage the last two in conjunction, so much the better!

Just look at the proliferation of 20 mph zones in recent years. If a driver is unable to see that a particular road is unsuitable to drive on at more than 20 mph then frankly I would suggest they should not hold a licence to drive! What we have now is a situation which mirrors the introduction of yellow lines. That has lead to many people, who probably have not experienced having to decide for themselves where it is and is not safe to park, assuming that the lack of parking restrictions is in itself a carte-blanche permission to dump their car at the side of the road. I see time and time again (especially on Facefart groups) people saying that as there were no yellow lines it is obviously OK to park there.

Now we have so many speed restrictions which, on a good number of country roads near me, jump between 40, 50 and national limit time and time again. For what reason? It seems it is likely because the road has a few bends. So drivers these days are unable to read the road? Let natural selection do its work I say (if it were not for the risk of collateral damage and injury).

Now it seems that our Lords and Masters (our Servants, should that not be?) are suggesting the introduction of a totally unenforceable law as they think that having a brief conversation on the phone is totally different to chatting to your passenger.

For goodness sake, if someone is driving in a dangerous manner, they should be dealt with for that and not just use a piece of legislation which gives a police officer the power to issue a TOR because he saw the driver, alone in the car, apparently speaking to himself!

/rant

[The Rookie]

Given they can’t prevent people talking handheld (let alone, texting, facebooking, instagramming and playing Piokemon go) how on earth would they enforce this?

[cp8759]

Just cos a bunch of MPs has suggested this does not mean it will be adopted as government policy. The DfT already considered and rejected this proposal years ago.

All they need to do is add a 1 line amendment clarifying that "use" for the purposes a mobile phone is not limited to "interactive communication" use, i.e. any use of a hand-held mobile phone is prohibited.

[Adders1974]

My company banned employees making work related calls from the car full stop 2 years ago. American company scared of blame I guess.

That said most do, just don't answer when unknown number or call anyone important. It went down like a lead balloon as well, with most saying they couldn't do their jobs if they cant use the phone while driving.

The answer lies in the technology and not law. Though that is someway off.

[mike5100]

My company banned employees making work related calls from the car full stop 2 years ago. American company scared of blame I guess.

That said most do, just don't answer when unknown number or call anyone important. It went down like a lead balloon as well, with most saying they couldn't do their jobs if they cant use the phone while driving.

The answer lies in the technology and not law. Though that is someway off.

I'm not sure that is true. If The Rookie is correctly describing the research in post #19 it doesn't seem that technology can provide an answer. My guess is that the research shows that the distraction of a two-way remote conversation with no opportunity to pick up body language is what causes the problem. Having said that, a blazing row with the passenger in the adjacent seat is going to provide similar distractions and is not yet illegal.
But technology can provide an answer to the first situation - 'do not disturb whilst driving' - which I have switched on this morning (Mind you I got 3 Whatsapp messages and surprisingly one incoming voice call whilst travelling this afternoon).
Mike

[cp8759]

mike5100 I suspect the reference to a technological solution might be a reference to driverless cars.

[Guest_Charlie1010_*]

‘My company banned employees making work related calls from the car full stop 2 years ago. American company scared of blame I guess.’

Same here but a Belgian company.
Policy says do not make calls whilst driving.
Only answer calls if safe to do so.

[DancingDad]

‘My company banned employees making work related calls from the car full stop 2 years ago. American company scared of blame I guess.’

Same here but a Belgian company.
Policy says do not make calls whilst driving.
Only answer calls if safe to do so.

Company I worked for 15 years back when mobile phones were small bricks and purely phones had that policy.
Invariably everyone from the MD downwards ignored it.
Customers weren't party to it anyway.

[jdh]

‘My company banned employees making work related calls from the car full stop 2 years ago. American company scared of blame I guess.’

Same here but a Belgian company.
Policy says do not make calls whilst driving.
Only answer calls if safe to do so.

Makes sense to me, I pretty much stick to that too on the basis that an incoming call may change my destination so is worth doing but an outgoing one won’t. I’ll often let it go to voicemail first then listen to the message before deciding on the correct response too.

[Redivi]

Is listening to a voicemail an interactive communication ?

[cp8759]

Is listening to a voicemail an interactive communication ?

Your phone is receiving data is it not? There's also the fact that you might press a button to save the message, listen to it again and so on, so I would say it's pretty interactive.

[mike5100]

Is listening to a voicemail an interactive communication ?

Your phone is receiving data is it not? There's also the fact that you might press a button to save the message, listen to it again and so on, so I would say it's pretty interactive.

Another thread suggested that receiving active traffic alerts to a phone being used as a satnav was NOT interactive.
Mike

[cp8759]

Is listening to a voicemail an interactive communication ?

Your phone is receiving data is it not? There's also the fact that you might press a button to save the message, listen to it again and so on, so I would say it's pretty interactive.

Another thread suggested that receiving active traffic alerts to a phone being used as a satnav was NOT interactive.
Mike

but seriously who's going to use a phone as a hand-held sat-nav? Who's going to usue anything as a hand-held sat-nav?

[mike5100]

Is listening to a voicemail an interactive communication ?

Your phone is receiving data is it not? There's also the fact that you might press a button to save the message, listen to it again and so on, so I would say it's pretty interactive.

Another thread suggested that receiving active traffic alerts to a phone being used as a satnav was NOT interactive.
Mike

but seriously who's going to use a phone as a hand-held sat-nav? Who's going to usue anything as a hand-held sat-nav?

I thought the thread had begun considering the possibility of regulation of hands-free in relation to interactive use.
Mike

[cp8759]

I don't see sat-navs being affected.

[The Rookie]

I thought the thread had begun considering the possibility of regulation of hands-free in relation to interactive use.
Mike

No, that's a different thread, read the first post again!

[typefish]

I don't see sat-navs being affected.

What about those that are "smart" - transmit and receive data about the road ahead & map updates on the fly?