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Mobile phone penalties and tips on legalities

Man In Car Talking On Mobile Phone Whilst Driving


As many of you are or should be aware, on the 1st of March 2017 the penalties for using a hand held mobile whilst driving increased from £100 and 3 penalty points to £200 and 6 penalty points.

It is quite amazing how many people I have seen since the 1st of the month still using their hand held mobile or texting away.  They are crashes looking to happen, and even more of a worry is how many professional drivers are using their hand held mobiles, especially HGV and van drivers with Taxi and private hire drivers not far behind.

I have noticed as well in the social media and on various forums that many are banging on about new mobile phone laws and what is or is not acceptable, but the reality is that it is not the law that has changed, just the penalty.

So for the avoidance of doubt, maybe a bit of clarity on the situation is required.

The current legislation in respect of mobile phone use came into force in December 2003.

The offence relates specifically to using a hand held mobile phone or device (the term device is important as now we have tablets, sat nav’s and so on), and whilst it is not illegal to use a hands free, safety organisations advise against it as it does affect concentration, and on that basis you run the risk that you could be prosecuted for careless or dangerous driving, maybe even for failing to maintain proper control of your vehicle.

Many people are under the misapprehension that they could also be prosecuted if they have their device mounted in a proper cradle.  Again, the regulations are specific to hand held devices, and so you have nothing to fear if it is properly secured.  If you press a button once in the same way as you would to change a radio station, then it is not going to be an issue.  But start inputting text or data and you could end up in trouble.

Many people believe that if they are stationary in a queue of traffic it is OK to use it.  Sorry to disappoint, but use the phone whilst in the driver’s seat and with the engine running and you leave yourself open to a ticket.  Being stationary in a queue is still deemed as moving, but in any case, it is only once you have turned off your engine that you are allowed to use your device. If you want to use your phone, you must be stationary with the engine turned off.

So what if you want or need to make or receive a call?

  • Stop (when safe to do so obviously) or leave it and let it to go to voicemail – even if you have a hands-free phone.
  • If you must talk, and have a hands-free phone, keep conversations short and simple or say that you’ll find a safe and legal place to stop and phone back.
  • Employers should issue specific company advice on mobile phone use.
  • If you are calling someone who you think may be driving especially if they are on hands free, ask…..
  • Are you driving?
  • Is it safe to talk?
  • Do you want to call me when it is safe to stop?

There are a number of other things to bear in mind.

Firstly, you only have to be seen using a hand held device whilst driving for the offence to be committed.

Recently the Police have been using their own HGV’s to detect offenders as the higher seating position gives the crew a better unobscured view into vehicles so they can see offenders more clearly, and of course other HGV drivers.  But in any case, many forces use plain cars, known as enforcement vehicles and the crews will look specifically for people committing these offences and you will not be aware until it is possibly too late.

If your driving deteriorates as a result of using either a hand held device or hands free, then it does also leave you open to prosecution for careless or even dangerous driving.

The penalty for careless driving?

  • Up to a £2,500 fine and
  • Mandatory 3 to 9 penalty points (number of points is dependent on the severity of the lapse) and
  • discretionary disqualification

There is also a specific offence of failing to maintain proper control of the vehicle.  Again, this is subjective, but the penalties can hit you hard.

  • £100 fine and 3 points, or
  • Up to £1,000 (£2,500 if you were driving a bus or a goods vehicle) if it goes to court

Of course it does not stop there.  If you are driving as part of your employment, then your employer could also be open to prosecution for an aid and abet offence –

  • If they cause or permit you to drive while using a phone or to not have proper control of the vehicle.
  • If they require you to make or receive calls whilst driving.
  • If you drive dangerously because you’re using a phone installed by your employer.

So that leads to the next question which is, are there any exemptions?

Well yes, there are a couple.

You can make an emergency call to 999 or 112 as long as it’s unsafe or impractical to stop first.

You can use a two-way radio but not any other device that sends or receives data.  This is particularly applicable to the emergency services such as the Police, (although many of them have been using hands free for some time now) and motorcycle instructors who are required to supervise learner riders and be connected by radio for instructional purposes.

So what is defined as a mobile or hand held device?

Handheld device is defined as something that “is or must be held at some point during the course of making or receiving a call or performing any other interactive communication function”.

Device is defined as “similar” to a mobile phone if it performs an interactive communication function by transmitting and receiving data, so this is where satellite navigation systems and tablets would come into the reckoning.

And then lastly, I have been asked a few times about whether the rules apply to cyclists.

Well the legislation specifically applies to using these devices whilst in charge of a motor vehicle.  There is nothing in law that states that a cyclist cannot use a hand held device whilst they are pedalling merrily down the road.  But…Again there is a contingency in that if that cyclist rides in a manner that is deemed to be dangerous to themselves or others, they leave themselves open to prosecution for careless cycling.

So what if I have a crash and I am injured whilst on the phone?

Well, if it can be proven that you were on a hand held device (and the Police will usually check post-crash) then even if the crash was not your fault, you may be deemed to have been contributory negligent and have a percentage of your claim reduced.

If it was deemed that you being on the phone was the cause of the crash (even hands free) then you could be held 100% liable.

So the question you have to ask yourself is, is any call I make or receive that urgent as to justify being involved in a crash?

If I make that call and crash, do I want to potentially live with someone’s death on my conscience for the rest of my days?

How would I feel if a member of my family was killed or seriously injured because someone was on the phone whilst they were driving?

Anyway, I hope that this clarifies the situation as to what is and isn’t allowed.

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Tony Carter

Incident and Advice Investigation Specialist

ac@hudgellsolicitors.co.uk

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