Want To Pick Up Your Phone Whilst Driving......?

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ToraToraTora | 10:18 Mon 19th Oct 2020 | News
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//NJ, surely your claim that, since the legislation was introduced, "it has always been illegal to use a mobile phone whilst driving"//

Yes you're right Corby. I was trying to explain why the change in the law was being made. I was also trying to explain that the headline "Drivers to be banned from picking up mobile phones" may be misleading. So how about the media say "Drivers to be banned from picking up mobile phones to use them as an interactive communications device"? I could then say " has always been illegal to use a mobile phone as an interactive communications device whilst driving."

The media have a habit of sensationalising motoring matters as they did when a minor change to the Magistrates' Courts' sentencing guidelines for speeding was made in 2017. The headlines raged "Drivers to be fined £2,500 for speeding." In fact drivers have always been liable to that level of fine as it is the maximum that can be imposed for speeding on a motorway. But that didn't stop the reptiles from putting the fear of God into speeding drivers, for whom more than 80% saw - and continue to see - their speeding transgressions resolved by way of a fixed penalty of £100 and three penalty points. The only difference the new guidelines made was to suggest a higher fine for the most serious cases of the few that get to court. But it doesn't make for such a dramatic headline.
There's enough hands-free tech these days dashboard holders, voice recognition, text read out, and earphones/headsets that there is no excuse for touching the phone to communicate - and any other use, including photos, games, long emails aren't real-time so the drivers can safely pull over to do any of those if they want to. The new laws get a thumbs up from me.
My friend got fined for picking up her phone while stationary at traffic lights.
//My friend got fined for picking up her phone while stationary at traffic lights.//

And, presumably, six points?

Using a phone whilst stationary at traffic lights is definitely an offence (you are still considered to be "driving" in that situation). Hopefully she was using it for "interactive communication" otherwise she could have challenged the allegation.

It has become troublesome for the police to always prove precisely what the device is being used for. Sometimes it's easy (text message displayed or call log confirms their suspicions) but sometimes it's not. What has been happening recently is that the police have failed to gather the evidence they need to prove that element of the offence and there have been a number of acquittals and cases discontinued. Hence the need for a change in the law.
My view seems different to the legal one then. If the vehicle isn't moving than as far as I define driving, it's not being driven. It's stationary. Were I to get into trouble on that point I'd certainly feel that I was just being picked on using the flimsiest of excuses. It can't help with police/public relations, when that sort of definition is chosen and used.
//If the vehicle isn't moving than as far as I define driving, it's not being driven.//

Alas your definition differs from the established legal one, OG. That said, there is no statutory legal definition. Instead, each case will turn on the facts and those adjudicating will be guided by precedents. Here's a couple on which prosecutors may rely:

In Pinner v Everett (1977) 64 Cr App R 160 Lord Upjohn said (in respect of whether P was a “person driving or attempting to drive” at the time he was required to provide a roadside breath test) “It is not necessary that the vehicle should be in motion. A person is obviously driving although he may be in an almost interminable traffic block or waiting at a level crossing or at traffic lights, or if he merely fills up with petrol; nor can it make any difference if in a traffic block he switches the engine off to prevent it overheating or to save petrol.”

In Edkins v Knowles (1973) 57 Cr App R 751 The Divisional Court summarised the case-law on the subject of when “driving” ceased:

The vehicle need not be moving. Once it has come to rest the operations of applying the handbrake, switching off the ignition etc. should be considered as part of the driving; Has the motorist reached the end of their journey? Subject to the brief interval needed to carry out the operations referred to above then on reaching the end of the journey they should no longer be regarded as driving;
When the motorist stops during the journey the following questions will be relevant in deciding whether they are still driving or not:
Is the purpose of the stop connected with the driving?
How long was the stop? The longer it was the less likely it is that they can still be considered to be driving;
Did they get out? If not, that is an indication (although not conclusive) that they are still driving. When a motorist has been effectively prevented or dissuaded from driving then they are no longer to be considered as driving.

All this means that an individual stopped at a traffic light or held up in traffic could be prosecuted for a mobile phone offence.

Finally, some guidance to CPS prosecutors:

"However, prosecutors should bear in mind that the intention of the legislation is to promote road safety. They should ask whether the use of the phone or other device is in circumstances which might prejudice the driver’s ability to drive safely."

"A person who uses their phone while stationary at traffic lights will be distracted and less able to move off safely when the light change. Similar considerations would apply to a driver stationary in a traffic jam."

"However, although the House of Lords in Pinner v Everett held that a person might still be driving even when they turned off the engine and got out of the car it is unlikely, other than in exceptional circumstances, to be appropriate to use section 41D to prosecute any person who in these circumstances made a phone call or accessed the internet."
I do not possess a mobile phone. I do not want one the intrusive things. Though I have noticed the scarcity of public phone boxes.
OG, if you are in control of the car, you are "driving". I wouldn't pick up a phone. It would have to wait until I arrived and stopped. Just habit.
What about smoking? Is that banned?
Anything which distracts the driver - kids in the back?
Drivers should perhaps wear blinkers?
Where does it end?

//What about smoking? Is that banned?
Anything which distracts the driver - kids in the back?//

Drivers can and have been prosecuted for those activities. Usually under Section 41D(a) of the Road Traffic Act:

41D. Breach of requirements as to control of vehicle, mobile telephones etc.

A person who contravenes or fails to comply with a construction and use requirement—

(a)as to not driving a motor vehicle in a position which does not give proper control or a full view of the road and traffic ahead, or not causing or permitting the driving of a motor vehicle by another person in such a position, guilty of an offence.

S41D (b) is the section relating specifically to the use of mobile phones.

It should be said that not everybody who is smoking or who has children in the car is guilty of an offence under that section. Each case will turn on the facts. But people have been convicted under it where smoking caused them to have an accident (in one case I saw, because a lighted cigarette was dropped causing the driver to momentarily lose control). The mobile phone legislation is different. The police do not have to prove that the driver was not in proper control; they simply have to prove that the phone was being used (at the moment "for interactive communication" purposes).

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