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August 27, 2019

High Court holds that not all uses of a mobile phone whilst driving are contrary to S41D RTA 1988

The High Court has held in DPP v Barretto [2019] EWHC 2044 (Admin) that S41 of the Road Traffic Act 1988 and Regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986 only prohibits the use of a mobile phone or other hand-held device to engage in interactive communication whilst driving.

Mr Barretto had driven past an accident and apparently decided to take out his mobile phone and film it; a police officer gave evidence that he saw Mr Barretto hold his phone up to the window of his car for approximately 10-15 seconds. He was stopped by the officer, and apologised.

At trial in the Magistrates and on appeal to the Crown Court, Mr Barretto said that in fact it was his son who had done the filming, notwithstanding his apology at the scene. He was disbelieved on that point by both courts.

His appeal was nevertheless successful in the Crown Court which concluded that Section 41D, and the Regulations, were concerned with the prevention of the use of a mobile phone to undertake interactive communication, not all uses. It is arguable that Section 41D does not clearly say this. The Section makes “using” a hand-held mobile telephone whilst driving an offence. However, in essence, because Section 41D also makes it an offence to use any other hand-held device capable of interactive communication whilst driving, the Crown Court held that the use of the mobile phone, which the Section was concerned with, was use for communication. In the Crown Court reference was made to another (unreported) case of R v Nader Eldarf in which a Crown Court appeal against conviction was allowed, where the appellant had been using his mobile telephone to listen to music.

The conclusion of the High Court on the prosecution’s appeal by way of case stated was that, contrary to the prosecution’s argument, S41D did not operate to outlaw all uses of a mobile phone whilst driving. The concern of the Section was interactive communication, hence the additional prevention of the use of other hand-held devices capable of interactive communication. The Court referred to the fact that use of e.g. any other device capable of recording images or film was not made an offence by the Section, as might have been expected if it was all uses of a mobile telephone which Parliament had intended to outlaw, phone for the purposes of filming through Section 41D either.

The High Court therefore concluded at paragraph 37 of the judgment that the meaning of the word “using” in S41(D) and Regulation 110 is restricted in respect of hand-held devices to using the interactive communication function of the device.

This might be considered an unexpected outcome both on a first reading of Section 41D itself, and also on a policy basis, as the dangers of using a mobile phone for any purpose is widely known. However, the Court was careful to note that other uses not covered by the section may nevertheless provide “cogent evidence” of careless or dangerous driving.

Anna Midgley