An appeal by way of case stated from a decision of the Crown Court which quashed Mr Barreto’s conviction for driving a motor vehicle while using a hand-held mobile telephone, contrary to S.41D of the Road Traffic Act 1988 and Regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986. Now that the dust has settled, Emily Landale explains what the issue was and explores why some fairly clear was so often misunderstood.
I summarised the incident in my earlier article but the respondent was seen filming an accident scene as he drove past it. He used the camera on his mobile phone to do so. The issue was whether this filming constituted a breach of the above regulations. The DPP’s case was that the regulation would prohibit any and all use of a mobile phone whilst driving. Mr Barreto’s case was that the regulations are directed only to the use of phones and other devices for the purposes of interactive communication.
A police officer observed the respondent holding his phone up to the driver’s window for between 10 and 15 seconds. The police officer stopped the respondent and the phone was in his lap on video mode. He admitted what he had done and apologised. Digital footage taken from the camera was in evidence. The Crown Court, and the Magistrates Court disbelieved his account that his son had taken the video – concluding that he had taken the video as described by the police officer.
R v Nader Eldarf (21st and 23rd September 2018) was raised at the appeal in the Crown Court. The Court ruled in that case that scrolling through music was not a breach of the regulation because it did not involve any external communication. At the Crown Court hearing of this case – the same reasoning was used, and it was concluded that taking a photograph or film with a mobile phone did not amount to “using” a hand-held mobile telephone or device for the purposes of the Act or the regulations. The conviction from the Magistrates’ Court was quashed.
The appeal to the High Court turned on three questions –
“1. Is using a hand-held mobile telephone or device for the purposes of Section 41D of the Act and Regulation 110 of the regulations restricted only to the use of an interactive communication function such as those set out in Regulation 110(6)(c) of the regulations?
2. Is holding a mobile telephone or device whilst driving, in order to take a photograph or a film, capable of amounting to using a hand-held mobile telephone or device for the purposes of Section 41D of the Act and Regulation 110 of the regulations?
3. Were we correct to conclude that the Respondent’s conduct did not amount to “using” a hand-held mobile telephone or device for the purposes of Section 41D of the Act and Regulation 110 of the regulations?”
In the appeal it was only necessary to address questions one and three.
The statutory framework is identified in my earlier article – but I repeat it here for completeness:
By operation of Section 41D of the Road Traffic Act 1988 and Regulation 110 of the Road Vehicles Construction and Use Regulations 1986 it is an offence to drive a motor vehicle while using a hand-held mobile telephone.
Amendments made by the Road Safety Act 2006, which came into force on 27 February 2007, included Section 41D which created a specific offence relating to the contravention of the requirements of Regulation 110, itself introduced with effect from 1 December 2003.
Section 41D reads:
“A person who contravenes or fails to comply with a construction and use requirement
(b) as to not driving …while using a hand-held mobile telephone or other hand-held interactive communication device …
is guilty of an offence.”
The relevant part of Regulation 110 reads as follows:
“(1) No person shall drive a motor vehicle on a road if he is using –
(a) a hand-held mobile telephone; or
(b) a hand-held device of a kind specified in paragraph (4) …
(4) A device referred to in paragraph …(1)(b)… is a device, other than a two-way radio which performs an interactive communication function by transmitting and receiving data.
(6) For the purposes of this Regulation –
(a) a mobile telephone or other device is to be treated as hand- held if it is, or must be, held at some point during the course of making or receiving a call or performing any other interactive communication function;
(c) “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…”
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).
It was held that Mr Barreto’s actions did not come within Regulation 110 and the Crown Court was correct to quash the conviction from the Magistrates Court.
It was held that the wording of the charge was consistent with the view of the regulation that it is the use of the phone or device, while held, for the purpose of a call or other interactive communication that is prohibited. The prohibition does not apply to all use of the phone.
Lady Justice Thirlwall was very clear however that this should not be viewed as a green light to use phones whilst driving – it is very possible that the respondent’s actions could amount to careless driving, or maybe even dangerous driving.
The answers to questions one and three were yes and yes respectively. The appeal was dismissed.
The full judgment can be read here: https://www.judiciary.uk/wp-content/uploads/2019/07/19-07-31-DPP-v-Barreto-Ref.-CO2702019-Judgment.pdf