7th November 2019

Government acts to improve road safety by closing mobile phone loophole

The government has confirmed it will close a legal loophole which has allowed drivers to escape prosecution for hand-held mobile phone use while behind the wheel.

Transport Secretary Grant Shapps announced that he will urgently take forward a review to tighten up the existing law preventing hand-held mobile use while driving.

At present, the law prevents drivers from using a hand-held mobile phone to call or text. However, people caught filming or taking photos while driving have escaped punishment as lawyers have successfully argued this activity does not fit into the ‘interactive communication’ currently outlawed by the legislation.

The revised legislation will mean any driver caught texting, taking photos, browsing the internet or scrolling through a playlist while behind the wheel will be prosecuted for using a hand-held mobile phone while driving.

Grant Shapps, Transport Secretary said:

‘We recognise that staying in touch with the world while travelling is an essential part of modern day life but we are also committed to making our roads safe.

Drivers who use a hand-held mobile phone are hindering their ability to spot hazards and react in time – putting people’s lives at risk.

It is already a criminal offence to use a phone while driving without a hands-free device. This latest move will see the government go further to ensure the law reflects the use of devices that allow other distracting activities.

The impact of this behaviour is proven – if a driver looks at their phone for just 2 seconds when travelling at 30 miles per hour, whether to reply to a message or send a quick snap, they will travel 100 feet blind, drastically increasing the chance of an accident.

The review will be urgently taken forward with further proposals expected to be in place by next spring, making the offence clearer for drivers and police forces.’

The reason for this review appears to be as a direct result of the recent case of  DPP v Barretto [2019] which considered the current legislation in respect of the use of electronic devices and mobile phones whilst driving.  The current legislation covering the use of mobile phones can be found under S.41 D of the Road Traffic Act 1988.

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, or

(b)as to not driving or supervising the driving of a motor vehicle while using a hand-held mobile telephone or other hand-held interactive communication device, or not causing or permitting the driving of a motor vehicle by another person using such a telephone or other device, is guilty of an offence.

A person guilty of an offence under S41 D (b) faces a discretionary disqualification or a minimum of six penalty points.

Mr Barreto was successful in his appeal against his conviction under S41D (b) in that he argued that his act of filming an accident as he drove past it did not contravene the legislation. He argued that his act of filming the accident did not amount to “an interactive communication function”.

The appeal Court agreed that his actions did not amount to an offence under this legislation however they did warn that such behaviour could have been prosecuted under other road traffic legislation and could have been deemed to be either careless or indeed dangerous in certain circumstances.

It would seem that the government has therefore decided to review the current legislation with a view to closing this apparent “loophole”.

If you need any road traffic advice then please contact me or one of our criminal Solicitor’s at Ben Hoare Bell LLP on 0191 565 3112 or email advice@benhoarebell.co.uk.


Blog by Ian Cassidy, Partner