BCL’s Senior Associate, Daniel Jackson, provides a timely reminder of the new law facing motorists on our roads.
The need for change
The increased technological capabilities of mobile phones highlighted the need to update The Road Vehicles (Construction and Use) (Amendment) (No. 4) Regulations 2003, which had previously amended The Road Vehicles (Construction and Use) Regulations 1986 by inserting a new regulation 110, and made it an offence for a driver of a motor vehicle on a road to use a hand-held mobile telephone or hand-held device (other than a two-way radio that performs an ‘interactive communication function’ by transmitting and receiving data).
From 1 December 2003, according to paragraph 6(c) of the 2003 Regulations, ‘interactive communication function’ included:
- sending or receiving oral or written messages;
- sending or receiving facsimile documents;
- sending or receiving still or moving images; and
- providing access to the internet.
If one considers the functions available on most mobile phones today, it has been evident for a period of time in the court system that the conduct of some drivers, when using a mobile phone behind the wheel of a motor vehicle, fell outside the scope of the offence.
The new law for drivers
The use of a mobile phone or similar device whilst driving now extends further than simply ‘interactive communication’.
The change in the law amends the 1986 Regulations through another statutory instrument – The Road Vehicles (Construction and Use) (Amendment) (No. 2) Regulations 2022, which came into force on 25 March 2022, and extends to England, Wales and Scotland.
It should be noted that ‘performs an interactive communication function by transmitting and receiving data’ has been replaced with ‘is capable of transmitting and receiving data, whether or not those capabilities are enabled’. Therefore, now covering incidents where the device is in Airplane Mode or Mobile Data is turned off.
Further, the amendment has removed the wording ‘during the course of making or receiving a call or performing any other interactive communication function’, and substituted it with ‘while being used’, which amends Regulation 110(6)(a) to: ‘a mobile telephone or other device is to be treated as hand-held if it is, or must be, held at some point while being used.’
Of most significance are the changes to paragraph 6(c), which mean that the word ‘using’ now includes the following:
(i) illuminating the screen;
(ii) checking the time;
(iii) checking notifications;
(iv) unlocking the device;
(v) making, receiving, or rejecting a telephone or internet based call;
(vi) sending, receiving or uploading oral or written content;
(vii) sending, receiving or uploading a photo or video;
(viii) utilising camera, video, or sound recording functionality;
(ix) drafting any text;
(x) accessing any stored data such as documents, books, audio files, photos, videos, films, playlists, notes or messages;
(xi) accessing an application; and
(xii) accessing the internet.
Whilst the above are rightly restrictive and appear to cover all of the obvious functions of a mobile phone or similar device and the reasons for using it, the 2022 Regulations do allow for a person to hold and use a mobile phone or other device to make a contactless payment for a good or service at a contactless payment terminal, which is received at the same time as, or after, the contactless payment is made, and as long as the motor vehicle is stationary. An example would be the use of Apple Pay on a mobile phone at a toll road payment station.
The use of a mobile phone for navigation purposes continues to be lawful, but as long as it is not held. The Government have updated their online guidance, which states that ‘You can use devices with hands-free access, as long as you do not hold them at any time during usage.’ Rule 149 of The Highway Code has also been revised, part of which includes:
You MUST NOT use a hand-held mobile phone, or similar device, capable of interactive communication (such as a tablet) for any purpose when driving or when supervising a learner driver. This ban covers all use of a hand-held interactive communication device and it applies even when the interactive communication capability is turned off or unavailable.
An important reminder
As drivers and occupants in motor vehicles, we should remember that not only is it an offence for a person to drive a motor vehicle on a road whilst using a hand-held mobile phone or similar device, but it is unlawful for a person:
- to cause or permit any other person to drive a motor vehicle on a road while that other person is using a hand-held mobile phone or similar device, and
- to supervise a holder of a provisional licence if the person supervising is using a hand-held mobile phone or similar device, at a time when the provisional licence holder is driving a motor vehicle on a road.
The commission of such an offence continues to carry a fixed penalty notice of £200 and six penalty points.
The 2003 Regulations created an exception to the provisions, which still remains in force today, namely that a person does not commit an offence if, at the time of the alleged contravention, the mobile phone or other device is being used to call one of the emergency services, which is in response to a genuine emergency, and it is unsafe or impracticable to cease driving in order to make the call (or for the provisional licence holder to cease driving while the call was being made).