Transport Law Update: Mobile Phones – major law changes in 2021

Mobile Phones

By: Tim Ridyard, Partner – Ashtons Legal

The Government has announced plans to significantly tighten up the ban on using mobiles phones whilst driving. The changes will come into effect in 2021.
Today, mobile phones (and other devices) can do much more than when the law was introduced in 2003. They are cameras, music players and much more. But, whatever the purpose, their use when driving is a distraction and highly dangerous.

In short, the current law:
• is out of date – mobile phones today are no longer just used for calls and texts
• is hard for police to enforce at the roadside
• currently allows mobile phone use that is technically lawful, but actually unsafe.

So, what’s the story?
There is a specific offence of using a hand-held mobile phone, in force since 2003. It is against the law to ‘use’ one for an ‘interactive communication’. Both things must be proved. It means police must be able to establish not merely holding the device but that something interactive is going on. If a driver is seen chatting on the phone, it is pretty easy to prove, of course. But if the driver is using it to, say, access music is this interactive (e.g. streaming Spotify) or not (pre-loaded music stored in the device)?
Some uses of the mobile phone are currently not ‘interactive communication’ – and hence not caught by the law for this specific offence. This is the gap being closed.Currently unlawful “interactive communication” activities

The driver holds the mobile phone or similar device and he/she is:
• making or receiving a phone call
• sending a text message or an e-mail
• accessing social media sites
• accessing streaming services.

The Government proposes changing the law ‘so that drivers are guilty of an offence if they use their hand-held mobile phone or similar device for any purpose while driving’.

This means that when holding the phone (or another device) the following activities (and possibly more) would become prohibited:
• illuminating the screen
• unlocking the device
• checking the time or for notifications
• rejecting a call
• composing texts or e-mails to save in drafts
• taking photos or videos or using the phone’s camera as a mirror
• searching for music stored on the phone
• searching for photos or other images stored in the phone
• dictating voice messages into the phone
• read a book or playing a game downloaded on the phone.

What about phones in cradles or used as SatNav?
In short, no. The Consultation in this case (running to 21 January 2021) sets out that ‘any change we make to the law on the use of hand-held mobile phones arising from this consultation will not affect the use of mobile phones which are positioned in a cradle and used while remaining in the cradle (for example as a satnav).’
There is an argument that, even if a cradle is used, it can as distracting as when being held. However, no change is envisaged.

Penalties
Drivers who unlawfully use a hand-held mobile phone while driving are most likely to receive a fixed penalty notice offer (FPN) of £200 and six penalty points on their driving licence. If the case goes to the Magistrates’ court – because the police decide to prosecute or the driver declines the FPN to contest the case in court – the maximum possible fine is £1,000 (or £2,500 for vocational bus and lorry drivers when driving larger vehicles). A driving ban can also be imposed.

Vocational drivers holding Cat C and D licences can also have action taken against their licences by the Traffic Commissioner – such drivers can expect a suspension of their HGV/PCV entitlements for a few weeks for offences.

New drivers: a newly-qualified driver cannot accrue 6 or more penalty points within two years of passing their driving test. If they do, the licence is revoked automatically by DVLA and the driver must re-take both theory and practical tests as a provisional licence holder. So, a single mobile phone offence for a new driver means the automatic loss of licence.

DPP v Ramsey Barreto (2019 EWHC 2044 [ADMIN])
The recent case of Barreto highlighted the need to change the law. Here, a driver used a mobile phone to film the aftermath of a road accident. The court confirmed that the current offence only caught limited types of use, and made plain the offence was only committed when a driver is (i) holding a mobile phone in his or her hand; and (ii) performing a function which involves “interactive communication”.

Other offences
There is a separate offence of not being in proper control of the vehicle (with lesser penalties) but far more serious offences can be charged where the driving involves or includes the use of a mobile phone (or another device.) These include all categories of dangerous or careless driving, whether or not leading to fatal or serious injury. Lengthy prison sentences can be, and are, imposed, for offences where distraction, even momentary, has been caused by phone misuse.
These powers will continue, but it will be easier for police to deal with routine offences, when the new powers come into force, as it will prohibit any holding of the device, whatever its purpose.

 

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