Mobile Phone Use While Driving Law Changes – March 2022
When does the new law come into force?
25th March 2022. It will only apply to offences committed on or after that date.
Offences committed before the 25th March will be prosecuted under the current law, even if they end up in Court after the change.
1) The description of ‘use’.
Currently it is an offence for a handheld telephone to be used whilst performing an “interactive communication function”. The meaning of the law was clarified in the case of DPP v Barreto, which stated that the phone had to be handheld and used for making/receiving calls/messages, or accessing the internet. So creating a diary entry, taking photos, listening to music or even playing games are not automatically included.
The first change amends “interactive communication function” to “using”. So now it is simply an offence to use a phone whilst driving. Communication does not come into it.
“Using” is then defined further, and includes illuminating the screen, checking the time, checking notifications, unlocking the device, making or receiving a telephone or Internet based call, receiving or uploading content, sending or uploading a photo/video, utilising the camera, video or sound functions, drafting any text, accessing any stored data, accessing an application or accessing the Internet.
Although personally we would not have given an exhaustive list, and perhaps just left it as “use”, this list covers almost everything and it’s hard to imagine a function of a telephone that, for example, does not involve illuminating the screen. This rules out almost all use.
2) Definition of ‘other device’.
The current law prohibits use of a mobile phone “or other device which performs an interactive communication function”. However this is changing so that an “other device” is now defined as a device that “is capable of transmitting and receiving data, whether or not those capabilities are enabled”.
This will rule out any argument to suggest that, for example, a telephone without a SIM card is no longer covered by the law.
3) A new defence
There will be a new defence if the driver can prove, on the balance of probabilities, that they were making a contactless payment for goods/services received at the same time or shortly after the payment was made, and whilst the vehicle was stationary.
What’s not changing?
1) The places where an offence can be committed.
Currently an offence can only be committed on a road or public highway. That will remain the same.
A good example of this is a taxi rank or a fast food drive-thru. Whether a taxi rank is a “road” for the purposes of law is questionable and depends on the facts of each individual case. There is no straight forward an easy test, and if someone is accused of using a phone whilst sat at a rank, the location and specific facts must be examined.
But compare this with offences of drink driving or driving without insurance, which can be committed on a road or other public place. Even though a rank is nor a ‘road’, it is certainly a ‘public place’ so an offence of drink driving can be committed there.
2) That the phone must be handheld.
There is still a requirement in the new legislation that a phone must be handheld. So if the phone is in a cradle, you cannot commit this offence.
But note – we always advise caution when using a phone in a cradle as you may be distracted and could be committing a different offence such as not being in proper control of your vehicle or driving without due care and attention.
3) Two-way radios.
A mobile phone is still only defined as a device “other than a two-way radio”. A two-way radio means any wireless telegraphy apparatus which is designed or adapted for the purpose of transmitting and receiving spoken messages and to operate on any frequency other than 880 MHz to 915 MHz, 925 MHz to 960 MHz, 1710 MHz to 1785 MHz, 1805 MHz to 1880 MHz, 1900 MHz to 1980 MHz or 2110 MHz to 2170 MHz
4) Emergency calls.
The law still provides that no offence is committed where a person makes a call to the emergency services on 999 or 112 in response to a genuine emergency, where it is unsafe or impracticable for them to cease driving whilst the call is made.
It is still an offence to use a mobile telephone whilst supervising a provisional licence holder.
Under the new law, it will be an offence to use a hand-held phone, or other device capable of transmitting data, whilst driving a vehicle on a road or public highway.
There will be an exception for two ray radios.
There will be defences available where the defendant can advance they were calling the emergency services or making a contactless payment while stationary (but in accordance with the provisions above).
What does this mean in practice?
The best way to look at this is by applying it to questions that we have been asked and then apply the new and old laws.
Q: My phone had the sat-nav on when I picked it up to change the postcode. A police officer saw me and has issued me 6 points and a fine. Can I appeal?
Old law: Yes, but it depends on what frequency the sat-nav was working. It is only an offence to use a hand-held phone for communication functions, meaning that it must access the Internet. If the sat-nav does not access the Internet but instead uses GPS, then this may not be covered under the legislation and you may have grounds to dispute it.
New law: No. It is an offence to use a mobile telephone whilst driving. By changing the postcode on the sat-nav you were illuminating the screen and interacting with an application. Unfortunately you do not have a defence.
Q: My phone was in a cradle and I received a text message. I opened it and read it, and I accept I was touching the screen. However I never picked it up. The police officer said that was still an offence and has summoned me to court for driving whilst using a mobile telephone. Can you defend it?
Old law: Yes, it is only offence to use a phone whilst driving if it is handheld.
New law: Still yes, it is still only of an offence to use a phone whilst driving it is if it is handheld (but don’t forget that if you are sending a text message whilst the phone is in a cradle you may be committing other offences).
Q: I was driving past a Starbucks order point to get a coffee. I paid using Apple Pay. A police officer has told me that is an offence. Is there anything I can do to challenge it?
Old law: Unfortunately, it’s unlikely. Even though a coffee branch might allow you to pay by app, the law does not.
New Law: Yes, there is a defence to using a phone whilst driving if you can show that you were using it to make a contactless payment, that you received the goods at the same time and you were stationary. Please make sure that you keep any receipts or bank statements that you got from the time to prove exactly what you were doing.
Hopefully these examples will give you a good insight as to how the new law will apply. But one final point to consider – does the new law go far enough? Can it stand the test of time? In 2003 when the old legislation was written it was enacted before the introduction of the first smartphone and quickly became outdated. Will this happen again? By listing what a smartphone can do, is it too heavily focussed on current technologies? Where will the technology be heading next? All of these are questions that are yet to be answered.