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Consultation on the use of hand-held mobile phones whilst driving

Drivers know they can be prosecuted for using a handheld phone whilst driving but many are evading prosecution or having their convictions overturned due to a legal loophole. However, last month the Department for Transport opened a consultation which is likely to result in a change to the law in early 2021.

The current governing law is the Road Vehicles (Construction and Use) (Amendment) (No 4) Regulations 2003 which came into force on 1 December 2003 and amended the Road Vehicles (Construction and Use) Regulations 1986 by inserting Regulation 110 into the constructions and use regulations.

Regulation 110(1) and (2) prohibits a person from driving, or causing or permitting a person to drive, a motor vehicle on a road if the driver is using a held-hand mobile telephone or a hand-held device for an interactive communication function. Regulation 110(3) prohibits a person from using a hand-held mobile telephone or hand-held device while supervising a holder of a provisional license (learner driver), whilst the learner is driving.

What is ‘hand held’?

Regulation 110 does not define “hand-held” although 110(6)(a) states that a mobile phone or device is to be treated as hand-held if it is, or must be, held at some point during the course of making or receiving a call, or performing any other interactive communication function. 

What is a ‘device’?

Regulation 110(4) specifies that the hand-held devices to which it applies are those which perform an interactive communication function by transmitting and receiving data.

What is ‘use’?

A mobile telephone or device will be in use where it is making or receiving a call, or performing any other interactive communication function, whether with another person or not.

The loophole being asserted is in relation to ‘use’. As the law currently stands ‘using’ means sending and receiving text message or calls. There is no provision for using the mobile phone to play games, take photographs or use any other functions the device may be capable of.

Therefore, the consultation will look at extending the Regulations to include these other uses. The only exception will be if the phone is being used to make a mobile money payment but only if the vehicle is stationary.

Baroness Vere, the Roads Minister has said: "Our roads are some of the safest in the world, but we want to make sure they're safer still by bringing the law into the 21st century.

"That's why we're looking to strengthen the law to make using a hand-held phone while driving illegal in a wider range of circumstances.

"It's distracting and dangerous, and for too long risky drivers have been able to escape punishment, but this update will mean those doing the wrong thing will face the full force of the law."

So what does this mean for motorists? Quite simply it will be much easier to prosecute drivers for using their mobile phones whilst driving. With the introduction of smart motorways with additional cameras as well as an increase in cameras on A roads, it will be easier for the Police to detect and secure convictions. A conviction will result in a £200 fine and 6 penalty points and if the driver has 6 or more points on their licence already will result in disqualification.

Gregory Abrams Davidson can help you with motoring offences. For further information please contact our specialist Litigation solicitor, Victoria Evans on 0808 164 0683.

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