IN THE CROWN COURT AT HARROW
On Appeal from Willesden Magistrates’ Court
1. On Friday 21 September 2018 we allowed an appeal by Nader Eldarf against his conviction by Willesden Magistrates’ Court on 23.05.2018, for driving a motor vehicle while using an interactive communications device, namely a handheld mobile device, contrary to Reg. 110(1) of the Road Vehicles (Construction and Use) Regulations 186, section 41D of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act, 1988. We gave our reasons in detail, but undertook to provide the full version in writing.
2. The facts, while formally proved, and confirmed on oath by the appellant, were agreed between the parties. The point at issue was whether in law and fact, the appellant, who was driving a motor vehicle, was “using” his iPhone within the meaning of the regulation when he was holding and touching his iPhone to change a pre-recorded song on his iPhone, without any external connection, communication, or interactivity. The prosecution evidence was read, the defendant gave evidence, and provided a demonstration of what he was doing with the device. In essence, he had been holding the phone while driving, and touching the screen with his thumb. It was accepted that he was not using the device for any external interactive communication function, but simply operating its internal circuitry to change the track of his music which was pre-downloaded and stored in the device. Although this was of course a re-hearing, the grounds of appeal were that, in convicting him, the Justices had erred in law in their interpretation of the Regulation.
3. Both parties were represented by counsel. No skeleton argument was provided to us by either party. No authority was cited to us – we were told that there was none. The arguments were a priori, based on the wording of the charge, and of the Regulation, a copy being furnished to us.
4. The statement of traffic patrol officer PC Relf, dated 11.08.2017, established the relevant facts, namely that:
- On 11.08.2017 at 13.35, the appellant was driving a Ford Transit van westbound on the A406 at Wembley;
- He was seen to hold a handset to the front of his face with his left hand;
- while his thumb was clearly operating the touch screen;
- he did not appear to be having a conversation;
- it was not a two-way device;
- no cradle or harness was in place;
- the appellant was not using a hands-free set, which was available for use;
- when the alleged offence was pointed out to him, he said: “I was changing the songs on my phone. I was not texting. It was because we were going slowly.
5. The appellant confirmed these facts on oath. He averred that the music was not being streamed live to his device, but rather it had already been downloaded. He demonstrated the playing of the music and the changing of the tracks with his thumb, in court. He was 34, of good character, with a clean licence. He was not cross-examined by counsel for the respondent.
6. We were taken through the secondary legislation by both parties. The arguments of the parties turned on the construction of the wording of the Regulation. The essence of this was that the Crown contended that by doing anything physically to the handset, the appellant was performing an interactive communication function between himself and the device – he was communicating with it. The Regulation prohibited that. It was immaterial that there was at no stage any interactive communication, or function ancillary thereto with any external agency, network or net. The Regulation had to be construed purposively, namely so as to penalise any use of the handset which had the potential to distract the driver. The Appellant contended that the words of the Regulation taken as a whole clearly contemplated interactive communication or ancillary function thereof as being with an external agency, network or net. The regulation did not penalise the use of an iPod – which had no external interactive capability – where the driver was using the identical physical actions. The Road Traffic Act 1980 had ample provision for penalising such an action, through s.3, and s.41D(a). Accordingly, on these facts, the appellant had simply been charged with the wrong offence.
7. We were tasked to decide whether in essence the Respondent’s contention was the right one, namely that it was immaterial that the appellant was using his iPhone qua iPod, and not qua iPhone using its capabilities to interact externally, and / or whether on the given facts the appellant was nevertheless acting in contravention of the Regulation.
8. The wording of the charge laid against the appellant stated in terms “drove a motor vehicle… on a road…when you were using an interactive communication device, namely a handheld mobile device…”.
9. Section 41D of the Road Traffic Act, 1988 states:
“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
(b) as to not driving ….a motor vehicle while using a hand-held mobile telephone or other hand-held interactive communication device,….
is guilty of an offence.”
10. Regulation 110 states [our underlining]:
(1) “No person shall drive a motor vehicle on a road if he is using –
(a) a hand-held mobile telephone. Or
(b) a hand-held device of a kind specified in Para 4.”
(4) A device referred to in paragraph ..(1)(b), is a device, other than a two-way radio, which performs an interactive communication function by transmitting and receiving data.
(6) For the purposes of this regulation-
(a) a mobile telephone or other 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 call or performing any other interactive communication function.
(c) “interactive communication function” includes the following:
(i) sending or receiving oral or written messages;
(ii) sending or receiving facsimile documents;
(iii) sending or receiving still or moving images; and
(iv) providing access to the internet.”
11. We felt that the Regulation is unnecessarily tortuous in concept, relying as it does on the characterisation of the device rather than its uses; indeed nowhere does it attempt to define “using” – which would have made its application to a whole range of factual permutations so much simpler.
12. Nevertheless, in seeking to interpret this Regulation, we are required to consider its provisions as a whole, together with such underlying legislative purpose as is discernible from its terms. We are also mindful that the Regulation contains such keys to interpretation as the deeming provision “is to be treated as…” in Para (6)(a), and the non-exhaustive listing of examples prefaced by the words “includes the following”, in Para (6)(c).
13. It seems clear to us nevertheless that the essential purpose and scheme of the Regulation is devoted to the prohibition of the use, while driving, of the inherent external interactive communication functionality of the mobile telephone [110 (1)(a)] and like devices [110 (1)(b)]. This is characterised by the list of interactive communication functions contained in Para (6)(c), each of which relates to external interactivity, and not one internal activity as between the user and the device. If it had been the intention of the (secondary) legislature to prohibit any physical operation of the handset by the user, the Regulation could have been drafted accordingly, in the simplest of terms, and without the need for the concept of interactive connectivity and precise definitions thereof.
14. Accordingly, as we postulated with the parties during argument, if a device was dead, and simply being used by the driver to scratch his head, then, despite the fact that it happened on other occasions to be capable of use as a phone, net browser, etc, this would not engage the words of this Regulation. It might well amount to conduct which was penalised as careless driving under s.3 of the Road Traffic Act, and that would be the appropriate charge to deploy. This was agreed by both parties. We continued the postulation: that the same would apply to checking the time from the device’s internal memory, or even making adjustments to its internal working system. The respondent suggested that it was here that the Regulation was engaged, because the driver was interactively communicating with the functionality of the device.
15. We disagreed, Our interpretation of the Regulation taken as a whole was that since the key words used throughout – and in combination together – are “interactive” and “communication”, the Regulation is manifestly driven by the function of the device which is dedicated to external interactive connectivity. A further illustration of this is to be found in Para (5). The three statutory defences provided therein are all explicitly predicated on a telephone call. This of course would apply equally to any other of the functions illustrated at Para (6)(c); however, we take the view that this is a good example of the logic of the canon inclusio unius, exclusio alterius. We were asked by the Respondent to extend this list to items such as possibly music storage that might not have existed or been specifically contemplated when this legislation was drafted. In our judgement, it would be straining the words and clear purpose of the Regulation if we were to apply them to a use which was unrelated to any external connectivity function of the device, or any function ancillary thereto.
16. Accordingly, on the particular facts of this case, where the appellant was agreed to be doing no more than operating an internal function of his mobile telephone, whatever other offence he may have been committing under the Road Traffic Act, we were not satisfied that he was guilty of committing the specific offence prohibited by Regulation 110.
James Curtis QC, Recorder,
J. A. Leigh, Magistrate,
Patricia Thomson, Magistrate.
23 September 2018