18 December 2019
Not reviewed after the date of publication
Considering R v Barreto 2019, whereby the definition for the use of a mobile telephone whilst driving has been amended, does holding a mobile telephone whilst driving and following a map in an application, such as Google Maps, constitute the use of the mobile for an interactive communication function?
The original mobile phone legislation contained in regulation 110 of the Road Vehicles (Construction and Use) Regulation 1986 is now quite old and the types of phones that it was designed to deal with, ones that were limited to calls and texts, have now changed out of all recognition.
In short, the case of DPP v Barreto 2019 says the purpose of the legislation is to prohibit the use while driving of mobile phones and other devices for the purpose of calls and other interactive communication, if held at some point. It held:
Not all use of a mobile phone held while driving is prohibited.
Driving while using a mobile phone or other device for calls and other interactive communication (and holding it at some stage during that process) is prohibited.
The question then arises - What is interactive communication? In the Barreto case, a non-exhaustive list of interactive communication functions is set out at paragraph 6(c) which reads:
‘‘interactive communication function’, includes the following:
(i) sending or receiving oral or written messages;
(ii) sending or receiving facsimile documents;
(iii) sending or receiving still or moving images; and
(iv) providing access to the internet…’
In the circumstances you refer to, the case of R v Nadar Eldarf 2018 is also of relevance - this was an appeal to the Crown Court. Though it is not precedent, the purpose of the legislation and the individual words that make up the offence were carefully considered. Put before another tribunal, this case should provide compelling grounds for adopting a similar approach in deciding future cases. The facts of the case were:
The appellant was driving a Ford van on an A-road.
He was holding a mobile phone in front of his face with his left hand.
His thumb was operating the touch screen.
It was not apparent that he was having a conversation.
There was no cradle for the device, and it was not being used hands-free.
The appellant stated that he was changing songs on his phone, he was not texting. The music was downloaded on to the phone, and the appellant had been changing the song with his thumb. The appellant submitted that the regulation did not restrict the use of an iPod, and he had been using his phone in an identical manner. He had not been using it for any interactive communication, and was therefore not ‘using’ the phone as defined in the regulation.
It was held that the regulation is ‘manifestly driven by the function of the device which is dedicated to external interactive connectivity’. A further example being the ‘three statutory defences provided… are all explicitly predicated on a telephone call’. Accordingly, the court stated that ‘where the appellant was agreed to be doing no more than operating an internal function of his mobile telephone … we were not satisfied that he was guilty of committing the specific offence prohibited by Regulation 110’.
R v Nader Eldarf concerned a driver who used his mobile phone to change the music to which he was listening; it was held that because that involved no external communication, it did not amount to ‘using’ a mobile phone. The same reasoning was applied to Mr Barreto’s case, resulting in his conviction being quashed.
Therefore, as a result of these cases, in our opinion, if the maps had been downloaded to the person's phone and they were merely operating the phone so as to view them i.e. 'operating an internal function of the phone', then this would not constitute an offence under regulation 110. However, if the person was directly using the interactive capabilities of the internet to view the maps and obtain information i.e. engaged in external communication, then this could amount to an offence against regulation 110, providing the other elements were also satisfied e.g. 'driving', 'on a road' etc.
We would also add that even if regulation 110 does not apply or if it may be difficult to prove 'use', consideration should be given to other offences such as not being in proper control of the vehicle contrary to regulation 104 of the Road Vehicles (Construction and Use) Regulations 1986. Just having your phone in your hand – even if not ‘using’ it – could satisfy the elements of this offence. Although, we would add that the key here would be how the driver came to the attention of the police, for example if the officer observed negligent/poor driving thereby supporting their opinion that the driver was not in proper control of their vehicle. Additionally, the offences of careless driving contrary to section 3 of the Road Traffic Act 1988 and dangerous driving contrary to section 2 of the Road Traffic Act 1988 could also be considered in appropriate circumstances.
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