22.2.2021 | Logistics

Mobile Phones and Driving

Tim Ridyard, Ashtons Legal’s transport partner shares essential legislation updates ahead of the 25 March 2022 deadline.

The use of hand-held mobile phones (or other interactive communication ‘devices’) whilst driving a motor vehicle will be prohibited in almost all circumstances from 25 March 2022.

Currently, a mobile phone or device has to be performing “an interactive communication function” for the use to be unlawful. This means a driver might currently use one for certain reasons, without breaking the law. This will fundamentally change.

“Using” a mobile phone or another device will, from 25 March 2022, include the following non-exhaustive list of prohibited activities:

• illuminating the screen
• checking the time
• checking notifications
• unlocking the device
• making, receiving or rejecting a telephone or internet-based call
• sending, receiving or uploading oral or written content
• sending, receiving or uploading a photo or video
• utilising the camera, video, or sound recording functionality
• drafting any text
• accessing any stored data such as documents, books, audio files, photos, videos, films, playlists, notes or messages
• an application
• accessing the internet

It can be seen how many currently lawful activities will be closed off. It will mean that one cannot take photographs or access music that is pre-stored on the device (rather than accessed via the internet), for example. It will not be possible to check the time or unlock the device.

This amends the existing offence of using a hand-held mobile phone or similar device. It does not make hands-free usage unlawful under this specific law. However, it is still entirely possible to commit other offences, by driving dangerously/carelessly or not having proper control of the vehicle, whether a hands-free device or not is used. This will occur through distraction that can occur even where a phone is used in a cradle or using vehicle in-built equipment. Using a phone whilst driving in any circumstances might lead to an accident that results in a prosecution for offences relating to death or serious injury.

Contactless Payments (lawful)
A new exemption to the offence is introduced, so that drivers can use their mobile phone or another device in order to make contactless payments for goods or services. The vehicle must be stationary. The payment made by the phone or device must be for the goods or services being provided at that time. This exemption will be needed for the payment of road tolls or at drive-thru food outlets, which otherwise would lead to massive delay and congestion.

Why the change?
The current law is very out-of-date and was drafted before rapid technological advances.

Currently, the offence is only committed where (a) the driver is holding the mobile phone or other device and (b) using it, where that use is for an ‘interactive communication function’.

This has meant that many obviously dangerous activities have not been unlawful under this specific offence e.g. taking photographs whilst driving. It has been difficult for police to enforce: even if the phone is being held how can it be proved that the use itself was unlawful?

In the appeal case of DPP v Burreto (2019) the High Court confirmed the law that is now being re-defined:

“The legislation does not prohibit all use of a mobile phone held while driving. It prohibits driving while using a mobile phone or another device for calls and other interactive communication (and holding it at some stage during that process).”

Supervising Provisional Licence Drivers
It should be remembered (and many may be unaware) that the supervisor of anyone learning to drive any category of a vehicle under a provisional licence is also forbidden from using a mobile phone or device. That remains the case and the wider definition of ‘using’ one will apply to them too.

Emergency Calls
There will be no change to the existing law that permits a call to the emergency services on 999 or on 112 if this is (a) in response to a genuine emergency and (b) it is unsafe or impractical to stop driving whilst the call is being made.

Vocational drivers
In addition to any Court penalty or fixed penalty, vocational goods and passenger vehicle drivers can expect to have action taken against their vocational licence (Category C and D) by the Traffic Commissioner who may suspend their entitlements – these are imposed through driver conduct procedures and proceedings. The duration depends on whether the phone use is in a car or a HGV/PSV and whether there have been previous offences.

Cases are invariably dealt with by fixed penalties of £200 and six penalty points, where a driver accepts guilt. If the matter is contested, then the matter will be dealt with at trial in the Magistrates’ Court. It should be remembered that no driver may accrue 12 or more penalty points within a three-year offending period – otherwise, a minimum six-month driving disqualification will be imposed (save in exceptional circumstances). In short, two phone offences will lead to a ban.

Further, a new probationary driver (qualified within the last two years) must have their licence rescinded by DVLA if they receive six penalty points – so one offence of mobile phone misuse will lead to the loss of the licence.

Our Road Transport law team can help you. Ashtons Legal provides dedicated, niche advice in the area of road transport law, including operator licensing as well as representation in Court and at Traffic Commissioner Public Inquiry hearings.

For more information about this or any other aspects of road transport law please get in touch with us through our online enquiry form or by calling 0330 404 0768. We would be delighted to help you and your business.

Sources: Road Vehicles (Construction and Use) (Amendment) (No. 2) Regulations 2022 and Regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986

Tim Ridyard, Ashtons Legal