Using your mobile phone while driving – is it illegal?


10 October 2019

The recent decision of the High Court in the case of DPP v Barreto ruled that it was not an offence for a driver to be caught filming a crash on his mobile phone. 

In reaching this decision Mrs Justice Thirlwall stated that it is the use of the phone or device (whist held) for the purpose of a call or other interactive communication that is prohibited, not all use of the phone. 

By virtue 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. 

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.”

Such an offence is punishable by imposition of six penalty points and a £200 fine. Those who have held their license for less than two years will have their license revoked and will have to pass both their theory and practical driving test.

Mr Barreto was initially found guilty in the magistrates’ court of driving whilst using a mobile phone; that conviction was overturned at Isleworth Crown Court. It was held by the Crown Court that the law only prevented the use of mobile phones to speak or communicate whilst at the wheel. The DPP challenged this decision in the High Court in April of this year, submitting that the Judge had misinterpreted the regulations, and it was any use of a mobile phone, not just use for an "interactive communication".

The decision in Barreto follows the result of the test case Crown vs Eldarf where judges ruled that the key words were "interactive" and "communication" and if the driver was using an internal function of the phone and not using an "external communication function", for example chatting on the phone or texting while driving, he was not breaking the law.

In the latest case, Mr Barreto’s legal team argued that motorists could not be convicted for using mobile phones if they were not using them to communicate. They claimed phone use restrictions only apply if the driver is "performing an interactive communication function" which bans talking, texting and internet use, but not using a mobile phone as a camera.

The prosecution submitted that “the regulation is to guard against unsafe driving caused by drivers holding their phones and using them, thereby distracting themselves from proper concentration and control of their vehicles”. The prosecution claimed that it was illogical for the regulations to be interpreted as they had by the Crown Court. 

The High Court formed the view that it is the use of the phone, while held, for the purpose of a call or other interactive communication that is banned, not all use of the phone. However, the court commented that this ruling should not be seen by motorists as a "green light" to make films as they drive – such conduct could still constitute an offence such as careless driving or possibly of dangerous driving, with potentially more serious punishment. 

These regulations are confusing and out-dated; drafted in 2003 four years before the release of the iPhone, they only cover a fraction of the functionality of the modern smart phone. This ruling therefore could lead to ministers rewriting the laws surrounding phone use. 

What does your mobile phone policy say?

You must ensure that your company’s policy sets our clearly the expectation that you have of your drivers in relation to mobile phone (or any other device) use when they are driving. You also need to ensure that your drivers are aware of the policy. Those with a vocational entitlement on their licence would be called to a driver conduct hearing and risk having this entitlement suspended (on a first time offence) for a period of two to four weeks, if they commit the offence of driving whilst using a mobile telephone. Repeat offending by drivers within your company may raise suspicions with the Traffic Commissioner that there is an issue within the business and the company could be called to a Public Inquiry.