KNOW YOUR RIGHTS
This month we feature another article on mobile phone law – but this one will be the last (we promise) as the gov- ernment has finally announced the exact changes!
We cannot stress enough the importance for professional drivers to read and understand the new legislation to ensure full compliance with the law. Don’t forget, this is an offence which carries six points. So just two offences within three years could see you totting up 12 points – meaning a potential six-month ban.
If you do need any advice or are being prosecuted for an offence, please email
enquiries@pattersonlaw.co.uk and we will be more than happy to conduct a free advice call.
WHEN DOES THE NEW LAW COME INTO FORCE?
On the 25th March 2022. It will only apply to offences com- mitted on or after that date. Offences committed before the 25th March will be prosecuted under the current law, even if they end up in court after the change.
WHAT’S CHANGING? 1) The description of ‘use’
Currently it is an offence for a handheld telephone to be used whilst performing an “interactive communication function”. The meaning of the law was clarified in the case of DPP v Barreto, which stated that the phone had to be handheld and used for making/receiving calls/messages, or accessing the internet. So creating a diary entry, taking photos, listening to music or even playing games are not automatically included.
The first change amends “interactive communication function” to “using”. So now it is simply an offence to use a phone whilst driving. Communication does not come into it.
“Using” is then defined further, and includes illuminating the screen, checking the time, checking notifications, unlocking the device, making or receiving a telephone or Internet based call, receiving or uploading content, sending or uploading a photo/video, utilising the camera, video or sound functions, drafting any text, accessing any stored data, accessing an application or accessing the Internet.
Although personally we would not have given an exhaustive list, and perhaps just left it as “use”, this list covers almost everything and it’s hard to imagine a function of a telephone that, for example, does not involve illuminating the screen. This rules out almost all use.
2) Definition of ‘other device’ The current law prohibits use of a mobile phone “or other 78
device which performs an interactive communication function”. However this is changing so that an “other device” is now defined as a device that “is capable of trans- mitting and receiving data, whether or not those capabilities are enabled”.
This will rule out any argument to suggest that, for example, a telephone without a SIM card is no longer covered by the law.
3) A new defence
There will be a new defence if the driver can prove, on the balance of probabilities, that they were making a contactless payment for goods/services received at the same time or shortly after the payment was made, and whilst the vehicle was stationary.
WHAT’S NOT CHANGING? 1) The places where an offence can be committed
Currently an offence can only be committed on a road or public highway. That will remain the same.
A good example of this is a taxi rank or a fast food drive- thru. Whether a taxi rank is a “road” for the purposes of law is questionable and depends on the facts of each individual case. There is no straightforward easy test, and if someone is accused of using a phone whilst sat at a rank, the location and specific facts must be examined.
But compare this with offences of drink driving or driving without insurance, which can be committed on a road or other public place. Even though a rank is nor a ‘road’, it is certainly a ‘public place’ so an offence of drink driving can be committed there.
2) That the phone must be handheld
There is still a requirement in the new legislation that a phone must be handheld. So if the phone is in a cradle, you cannot commit this offence.
But note - we always advise caution when using a phone in a cradle as you may be distracted and could be committing a different offence such as not being in proper control of your vehicle or driving without due care and attention.
3) Two-way radios
A mobile phone is still only defined as a device “other than a two-way radio”. A two-way radio means any wireless teleg- raphy apparatus which is designed or adapted for the purpose of transmitting and receiving spoken messages and to operate on any frequency other than 880 MHz to 915 MHz,
MARCH 2022
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