David Barton's Motoring Law Blog
For the first time ever Kent police have set up static road checks to catch drivers under the influence of drink or drugs.
The static check points will be set up at carefully chosen locations around the county to support the summer drink and drug driving campaign.
People are used to the annual Christmas drink drive campaign but this is new and probably unexpected. Last Christmas the court process was speeded up significantly so that drink drivers were quickly off the road if they pleaded guilty. That was the objective and it seemed to work.
Summer brings BBQ and late outside drinking in a relaxed manner and I think people forget themselves. It’s the same problems as Christmas with people underestimating how much they drink and how long it takes the alcohol to get out of their system. Late nights drinking and early morning driving is a recipe for disaster. This is effectively the arrival of a second blitz and I would expect that it’s here to stay.
Vehicles will be selected for on the spot tests based upon automatic number plate recognition, evidence of impaired driving or if offences are observed.
Drivers will be pulled over if they commit an offence or if the officers on duty suspect that their driving may be impaired. They will be subject to breath tests to check for alcohol and Field Impairment Tests (FIT) if drug use is suspected. Offenders will be fined or arrested and charged.
It makes no real difference if its drink or drugs; police are targeting behaviour. There has also been another change. More drivers convicted of driving with excess alcohol or unfit through drugs (or refusing to give samples) being placed by DVLA into a High Risk Category thereby making it much more difficult to get licences back without medicals.
The campaign aims to increase the conviction rate by increasing the likelihood of an offender being detected as well as to educate drivers, reassure the public and collate data on driver behaviour.
Of course the overriding aims of such campaigns are to reduce the incidence of death and injury associated with drink and drug driving. In 2011, the latest year for which statistics are available, 9,990 people were injured in accidents where someone driving was over the drink drive limit. 280 people were killed in such accidents, and that’s 15% of all road fatalities and a 12% increase on the year before. In addition 1,290 people suffered serious injuries (an increase of 3.6%) and 8,430 people suffered slight injuries (up 3%).
In Kent alone 2157 people were arrested for excess breath alcohol levels in 2012 and a recent survey indicated that 1 in 5 young drivers admitted to driving daily while under the influence of illegal drugs. So it’s a significant problem and the police are keen both to educate people about the risks and to prosecute offenders.
It remains to be seen how effective the static road checks will be but the publicity surrounding them should certainly help raise awareness of the dangers and consequences.
Until recently there was no separate offence committed by those who cause serious injury when driving dangerously. Prosecutions have been confined to cases involving fatalities, or to dangerous driving on its own. The Courts took account of injuries only when sentencing.
With effect from the 3 December 2012, a new driving offence of causing serious injury by dangerous driving came into force under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).
Punishment on conviction is significant and is designed to address a gap in the law where those convicted of causing life changing injuries to others through their driving were subject to a maximum of two years imprisonment. The new offence carries a maximum of 5 years imprisonment.
The Road Traffic Act of 1988 is amended by Section.143 of LASPO by inserting a new Section 1A:
'A person who causes serious injury to another person by driving a mechanically propelled vehicle dangerously on a road or other public place is guilty of an offence'.
The definition of dangerous driving remains the same and will apply, for example, to driving with alcohol, texting and telephoning, dangerous overtaking and prolonged bad driving. There is no fixed list of what constitutes dangerous driving. There are two testes – it must firstly be driving which falls far below what would be expected of a competent and careful driver, and secondly it must be obvious to a competent and careful driver that driving in that way would be dangerous.
The term serious injury is defined in Section 1A(2) as any physical harm which amounts to grievous bodily harm and so juries will be looking at both the standard of driving and the injuries caused. These may be difficult cases. There is no limit on the definition of “another person” and so it includes anyone in another vehicle, a pedestrian, or someone in the drivers own car.
The offence is an either way offence, meaning it can be heard by either Magistrates or Crown Courts depending on the facts and seriousness. Magistrates will decline to deal with the offence if they think their sentencing powers might be inadequate. In the Magistrates Court the offence carries a level 5 fine and/or 6 months custody with a mandatory disqualification period of at least 2 years (unless special reasons are found not to disqualify) and endorsement. An extended retest is also mandatory.
In the Crown Court, the maximum penalty is 5 years imprisonment and/or a fine with a mandatory 2 year minimum period of disqualification (unless special reasons are found not to disqualify) and endorsement. An extended retest is also mandatory.
CPS guidelines suggest the charge should only be used in cases where the level of injury is most serious and has occurred as a result of an incident involving a mechanically propelled vehicle being driven on a road or other public place. “Roads” are widely defined and might include a car park, depending on the facts.
Parliament has responded to road safety campaign groups and victims and their representatives who have called for the gap in sentences between the current 2 year maximum for dangerous driving and the 14 year maximum for causing death by dangerous driving to be addressed. The 5 years imprisonment maximum for this offence addresses that concern.
The following are examples of circumstances that are likely to be characterised as dangerous driving are derived from decided cases:
- racing or competitive driving;
- failing to have a proper and safe regard for vulnerable road users such as cyclists, motorcyclists, horse riders, the elderly and pedestrians or when in the vicinity of a pedestrian crossing, hospital, school or residential home;
- speed, which is particularly inappropriate for the prevailing road or traffic conditions;
- aggressive driving, such as sudden lane changes, cutting into a line of vehicles or driving much too close to the vehicle in front;
- disregard of traffic lights and other road signs, which, on an objective analysis, would appear to be deliberate;
- disregard of warnings from fellow passengers;
- overtaking which could not have been carried out safely;
- driving when knowingly suffering from a medical or physical condition that significantly and dangerously impairs the offenders driving skills such as having an arm or leg in plaster, or impaired eyesight. It can include the failure to take prescribed medication;
- driving when knowingly deprived of adequate sleep or rest;
- driving a vehicle knowing it has a dangerous defect or is poorly maintained or is dangerously loaded;
- using a hand-held mobile phone or other hand-held electronic equipment whether as a phone or to compose or read text messages when the driver was avoidably and dangerously distracted by that use
- driving whilst avoidably and dangerously distracted such as whilst reading a newspaper/map, talking to and looking at a passenger, selecting and lighting a cigarette or by adjusting the controls of electronic equipment such as a radio, hands-free mobile phone or satellite navigation equipment;
- a brief but obvious danger arising from a seriously dangerous manoeuvre. This covers situations where a driver has made a mistake or an error of judgement that was so substantial that it caused the driving to be dangerous even for only a short time.
It is not necessary to consider what the driver thought about the possible consequences of his actions: simply whether or not a competent and careful driver would have observed, appreciated and guarded against obvious and material dangers.
The DVLA has announced that drivers who fail a roadside eye sight test can now have their licences revoked in hours rather than days.
Under the new arrangements the police can initiate proceedings electronically at the roadside immediately an offence is established meaning that the notice of revocation can be issued to the motorist within hours.
All drivers must be able to meet the eyesight standard for driving which is demonstrated by being able to read a number plate from 20 metres. Police can easily check this at the roadside. If a motorist fails to meet this standard they will have committed an offence and will have their licence revoked and they won’t get it back until they can demonstrate that their eyesight meets the required standard. In addition driving with defective eyesight may invalidate your insurance.
The number of motorists who are banned for failing roadside eyesight tests is on the increase. In 2001 almost 6000 motorists had their licenses revoked as a result of failing a roadside eyesight test, up over 8% on the previous year. Amazingly the number of bus and lorry drivers banned increased by 36% in the same period. This may be only the tip of the iceberg however. A study by the College of Optometrists revealed that 20% of middle aged drivers had driven knowing that their eyesight was sub-standard.
The police and the DVLA see this new capability as a great tool for increasing safety on the road and releasing this news gives them an opportunity to drive the message about eyesight home.
“It’s blindingly obvious drivers should all undergo regular eye sight tests. At Licence Bureau we are actively raising this issue.” said Michael Reed Marketing Director at Licence Bureau Ltd.
Under the current law drivers are required to be able to read a licence plate from 20 metres in order to pass their driving test. They are required to maintain this standard of eyesight as long as they are driving but there are no further compulsory eyesight tests. Each driver must monitor themselves and take appropriate action.
If you are worried that your eyesight might not be up to scratch it is fairly easy to test by pacing out or measuring 20 metres from a suitable car and seeing if you can read the plate, remember that you should conduct the test in daylight and you are allowed to use your glasses or contact lenses for the test. If you’re still unsure you should arrange an eyesight test with a qualified optician.
Being able to see clearly when you’re behind the wheel is vital, so it’s alarming to read a new report claiming that poor vision causes almost 2,900 casualties on the roads annually. The estimated cost of this to the UK is £33m every year – not to mention the financial and emotional costs for those ending up with a driving prosecution.
These findings were part of a study commissioned by insurer Royal Sun Alliance for its ‘Fit to Drive’ campaign. The campaign aims to raise awareness of the risks of driving with bad eyesight.
To pass the current driving test, you must be able to read a car registration plate from 20 metres. But Royal Sun Alliance is asking for a change in UK law – it wants learner drivers to have their vision tested by a professional before applying for a provisional licence. It’s also calling for drivers to be legally obliged to have their eyesight rechecked every decade.
Road safety charity Brake deputy chief executive Julie Townsend said: ‘This report gives an indication of how many violent and devastating casualties on our roads could be prevented through a simple eye examination.’
We all need to do our bit towards safer roads in Kent and nationwide, so even if you think your sight is fine, it’s best to have an eye test at least every two years.
"..this is not a game: this is the administration of justice."
With these, and a number of other withering comments, the Administrative Court dismissed an application for Judicial Review brought on behalf of Mr Zafar Ali who had been clocked by police at 117 mph in his Porsche motor car. The case was fully reported on the 19 July 2012 and stands as an example of just how important it is for legal advisers not to be seen by the Court as anything other than completely open and straight in their dealings with the Court and the prosecution.
To do otherwise impacts on both the solicitor and the client (usually the client who ends up paying a fortune in costs), and at a time when the loophole myth is perhaps bigger than ever, this is an opportune time to address some basic and sometimes forgotten rules of engagement.
Mr Ali engaged the legal services of a very well known road traffic practitioner and appeared before Mid Sussex Magistrates Court to face a simple enough speeding allegation. There was undoubtedly some procedural complexity despite the simplicity of the allegation, but out of that, according to the High Court, was borne a plan to try and escape conviction. The High Court Judge criticised the conduct of his solicitor and said it amounted to sharp practice. The sin was a failure to disclose the true nature of a defence purely for tactical reasons.
Why does this matter you may ask. It matters because in 2006 solicitors and legal representatives were reminded in blunt and clear terms, again by the High Court, that the 2005 Criminal Procedure Rules brought about a sea change in the way criminal cases were henceforth to be conducted. The overriding objective was that criminal cases be dealt with justly, to include the acquittal of the innocent, the conviction of the guilty and dealing with cases fairly and expeditiously. Courts have a duty to manage cases and to do so parties must put their cards on the table. The court must see that justice is done, and that does not involve allowing people to escape on technical points or by attempting an ambush.
If a defendant pleads not guilty, a case management hearing is arranged, and both the prosecution and the defence must tell the court what the issues are. There is a duty on solicitors to tell the Court and the prosecution what points his client wishes to take and it is impermissible to be selective. The Court said this in 2006 “The days of ambushing and taking last minute technical points are gone. They are not consistent with the overriding objective of deciding cases justly…”
This does not mean that I cannot robustly defend my clients; I can and do. The point is that there is a difference between robust defence and game playing. The former attracts respect but the latter does not and the Courts stamp on it. It perpetuates the myth being increasingly spread that with the right tactics a road traffic conviction may be derailed and avoided. This is a shame because very many road traffic cases are properly contested and won on merit and not on loophole. I have been conducting road traffic defences for nearly 30 years and have seen the acquittal of very many deserving motorists on merit and the shame is that my discipline is being widely discredited as a hunting ground for technical and tactical defences.
Mr Ali’s tactical approach came unstuck. The Court’s criticism of his legal adviser was blunt and yet another marker was put down for legal representatives as to how to conduct themselves. One can only speculate how much it all cost Mr Ali. You can be sure that Courts have fully digested this case and will be ready to deal with parties who fail to put their cards on the table. This nearly always involves paying extra costs so it’s never cheap. In addition, one’s credibility disappears in a flash.
Clients need to know that from a suitably experienced advocate they will get robust representation within the confines of the procedural rules that apply to criminal proceedings. That is indeed our duty; client’s interests come first and must be fully promoted. I have no problem with that, but there is a line I am not permitted to cross. If I do, it damages me and it ultimately damages my client.
Be careful what you wish for.
You can read the transcript of the case here.
If you plan to be one of the estimated 2.5 million UK motorists driving in mainland Europe this summer, you need to be aware of the ever lengthening list of things you must take with you and of rules and regulations that will apply in order to make your driving a pleasant experience.
According to research recently carried out by Confused.com nearly two thirds of British drivers experience some form of mishap when travelling abroad. This is a very significant figure, and the research also reveals that something like 25% of British motorists do not check that they have adequate insurance.
The cost of inadequate planning can be very high. Rescue services estimate that 25,000 UK motorists will break down while travelling in Europe and that only a small proportion will have purchased breakdown insurance. On top of that the cost of regulation is rising and the penalties for getting it wrong can be severe. You need to be aware of some old and some very new laws that will apply to you, to make your journey safe and enjoyable. Some European police can be very zealous.
All EU countries have a way of accessing driver details from DVLA and are using UK based companies to collect fines.
In all EU countries the police will issue penalty tickets and spot fines to be paid there and then. You will need cash. If you refuse to pay the penalties can ramp up very quickly.
Here are some general tips to help:
1/ Insurance: Check your insurance policy covers you to drive abroad, and include substitute drivers. It may be a statement of the obvious, but two aspects in particular need looking at. The first is the extension of the policy to cover you in the event that you have an accident that is your fault and the second is cover for car contents in the event your car is broken into.
British insurance policies are obliged to provide third party cover in EU countries but unless arrangements have been specifically made you may well not have fully comprehensive cover, making repatriation of your car for example a very expensive exercise. If you have an accident abroad and if you write off your car without having extended your cover to fully comprehensive, the expense will be substantial. So the rule is check before departure, and make a written record of anything your insurance company tells you and who you spoke with; better still send a confirmatory e mail. Most insurers now serve customers and provide information through call centres so it’s important to have some record of what you were told should something go wrong. Even if you know your policy will be extended automatically, make sure it will extend to the full period of your holiday.
It is a fact that cars bearing UK number plates are a target because there is a fair chance they contain something worth stealing, and insurers regard some parts of Europe as theft hotspots. So again check with your insurer and be aware that travel insurance may not cover items stolen from cars. The Foreign and Commonwealth Office warns of particular threats and crime trends that target foreign drivers and are worth being aware of.
2/ Breakdown Insurance: Think about European breakdown cover and obtain it if needs be. There is no legal obligation to take out such cover, but a UK based provider will pay dividends if you breakdown somewhere rural and you can’t speak the language well enough. So look at a policy that provides roadside assistance as well as multilingual help.
3/ Documents: The UK is a little more relaxed about the requirement to carry documents with you, but in Europe you may well be asked for documents. You will need to have available a full UK drivers licence not provisional, your original registration document to prove ownership and a copy of your insurance certificate. In fact in France it's compulsory to have the originals with you and so wise to take copies as well.
4/ Seat Belts: In most countries it’s compulsory to wear a seat belt front and rear, and it’s copulsary for all children up to 10 years to travel in the back seat of a car and wear a seat belt or be strapped into a proper child seat.
5/ Age Restrictions: In the UK drivers are able to use any roads from 17 years, as soon as they pass their tests. Not so in France where motorway drivers must be aged 18 and over.
6/ Mobile Phones: It is common for “hands free” systems to be compulsory for mobile telephones use while driving. It’s the same rules as in the UK but in some countries “hands free” systems with earpieces cannot be used.
7/ Satnavs: Satnavs capable of warning of the presence of speed cameras are illegal in some countries and this function must be disabled. If it can’t be disabled then the satnav must not be carried inside the car.
8/ Compulsory Equipment: Headlight beam deflectors are required just about everywhere but most countries have requirements for you to carry additional specified equipment in the car unfortunately the exact equipment required differs by country. You should always check the requirements for the country you will be visiting. The table below gives a summary based on my research but sources do differ on their interpretation of of the individual requirements of each country. To be completely sure I recommend carrying all the equipment stated. It isn’t terribly expensive, adds to safety, and will keep you out of legal trouble. Typical equipment includes:
- fluorescent safety vest (one per passenger). More specifically, the safety vests must be carried inside the car and not in the boot.
- Warning triangles for use if you breakdown. be aware that the distance at which you place your triangle behind your vehicle varies by country and some countries require 2 triangles.
- Spare bulbs and the tools to fit them.
- First aid kits.
- Fire extinguishers
- Spare spectacles if you need them to drive.
9/ Drinking and Driving: Don’t do it. Most of Europe has stricter drink drive laws than the UK. The level is 50 micrograms rather than 80, and so two modest glasses of wine can put you over. The penalties can be severe too. In France for example they can range from a modest fine of 135 Euros for a reading of between 50 and 80 micrograms to two years in prison and 4,500 Euros in fines for readings above. If you have an accident whilst over the limit the fines go up to 30,000 Euros, and even higher up to 150,000 euros in the event of injury or death. The reason is that France has historically had a huge death toll from drinking and driving and it now comes down very hard indeed on those who ignore the rules. Best just to avoid alcohol altogether.
10/ Breathalysers: From 1 July 2012 it has been compulsory to carry self testing breathalyser kits in the car while driving in France. Two are advised in case one is used and a fine of 15 Euros will be issued after 1 November 2012.
11/ Speed: Be aware of the speed limits and the fact that police officers abroad can and will impose on the spot fines. The speed limits vary by country and even within a country they may vary in different conditions such as in wet weather or poor visibility. General speed limits can also be varied by local signage so keep your wits about you as you drive.
Speed limits are generally lower if you are towing, and may be lower if you have held a licence for less than 2 years.
Driving in much more open roads abroad can be a real joy, and a little thought and planning will make sure it stays that way.
Summary of the Key requirements:
If you plan to drive your own car on holiday this summer, its important to be aware of some old and some very new laws that will apply to you, to make your journey safe and enjoyable. There is little worse that falling foul of regulations you were not aware of that are enforced by zealous police officers.
Here is a simple guide to help;
- Check that your insurance policy covers you to drive abroad and include substitute drivers. It may be a statement of the obvious, but two aspects in particular need looking at. The first is the extension of the policy to cover you in the event that you have an accident that is your fault and the second is cover for car contents in the event your car is broken into. Cars bearing UK number plates are a target because there is a fair chance they contain something worth stealing, and insurers regard some parts of Europe as theft hotspots. So check with your insurer and make notes of what you are told and who by. Most insurers now deal with you through call centres so it’s important to have some record of what you were told should something go wrong. British insurance policies are obliged to provide third party cover in EU countries but unless arrangements have been specifically made you may well not have fully comprehensive cover, making repatriation of your car, for example, a very expensive exercise.
- Think about European breakdown cover and obtain it if needs be.
- It is compulsory to wear a seat belt front and rear. It is compulsory also for all children up to 10 years to travel in the back seat of a car and wear a seat belt or be strapped into a proper child seat. Only adults and children from 10 years may sit in the front passenger seat.
- Mobile telephones must not be used while driving except with a "hands-free" system. It’s the same rules as in the UK.
- While driving in France, it is compulsory to have your driving licence, car registration papers and insurance documents with you. Furthermore these must be the original, but take copies and keep them separate in case they get lost or stolen.
- You are required to carry not only a warning triangle in your car but also a fluorescent safety vest (one per passenger). More specifically, the safety vests must be carried inside the car and not in the boot. The theory is that if you break down in a dangerous place you should put your safety vest on before getting out of the car. If you fail to have these available, the standard fine is around 90 euros per item.
- Drinking and driving. Don’t do it. France has stricter drink drive laws than the UK. The level is 50 microgrammes rather than 80, and so two modest glasses of wine can put you over. The penalties can be severe too, ranging from a modest fine of 135 Euros for a reading of between 50 and 80 microgrammes to two years in prison and 4,500 Euros in fines for readings above. If you have an accident whilst over the limit the fines go up to 30,000 Euros, and even higher up to 150,000 euros in the event of injury or death. The reason is that France has historically had a huge death toll from drinking and driving and it now comes down very hard indeed on those who ignore the rules. Best just to avoid alcohol altogether
- From 1 July 2012 it will be compulsory to carry self testing breathalyser kits in the car. Two are advised in case one is used and 15 Euros fines will be issued after 1 November 2012.
- Radar speed detectors are illegal in France even when not in use and if caught the police can fine you 1,500 euros, have the detection equipment confiscated and even the car itself. From the 3 January 2012 satnavs giving out the position of speed cameras became illegal in France, so if in doubt may be best left at home.
- Be aware of the speed limits and the fact that police officers abroad can and will impose on the spot fines. Be aware also that speed limits are lower in wet weather. They are as follows:
- Motorway 130 km/h and 110 in the wet;
- Dual carriageway 110 km/h and 100 in the wet;
- Open road 90 km/h and 80 in the wet;
- Town 50 km/h
The limits are lower if you are towing, and also lower if you have held a licence for less than 2 years. For new drivers motorway speed comes down to 110 km/h, dual carriageway to 100 and open road to 80.
Driving in much more open roads abroad can be a real joy, and a little thought and planning will make sure it stays that way.
Transport Minister Mike Penning has published a consultation paper on changes to the treatment of penalties for careless driving and other motoring offences. This follows on from a number of commitments made by the Government in its Strategic Framework for Road Safety published in May 2011, and now has a feeling of “it’s going to happen”.
Making careless driving a Fixed Penalty offence is interesting, and will undoubtedly contribute helpfully to the removal from the court process of many trivial examples that take up disproportionate time, money and police resources. It will for example deal with the surprising number of trivial cases involving car park bumps that find their way into court. The proposed fixed penalty process will open the way to offer education and training as an alternative to court.
This move is in part driven by the perception that the current regime is overly bureaucratic. Someone is guilty of careless driving if their driving falls below the standard to be expected of a competent and careful driver, but with no option but to prosecute in court trivial cases become burdensome and a drain on resources. They require a disproportionate amount of paperwork and court time and the Government believes that many cases such as tailgating, braking suddenly, and inside overtaking are simply not pursued.
In many fixed penalty cases drivers are given a choice of whether to take training or pay a penalty or indeed go to court, and this could now extend to careless driving cases.
At the same time the Government is contemplating an increase in fixed penalties for a range of offences. Most have not increased since 2000 and an increase will deal with the perception that many road traffic offences are seen as trivial. Speeding penalties may accordingly increase to £90, as will mobile phone use and not using a seatbelt. Driving without insurance may increase to £300.
According to recently published statistics from the Home Office drivers waste up to £18 million a year in unnecessary fines because they fail to pay speeding tickets and other penalty notices on time. Whilst drivers in Wales are amongst the slowest in paying, those in Kent are almost the fastest with only 14% not paying on time.
The figures are surprising. Apparently one in three (32 per cent) of the 1.8million fixed penalty notices issued in 2010 were paid late. If a speeding ticket or other fixed penalty notice is not paid within 28 days, the fine increases by 50 per cent - meaning an initial £60 fine becomes £90.
Drivers in Wales were among the slowest in paying, with late payers accounting for more than half of the total in the Gwent (53 per cent) and South Wales (51 per cent) police regions.
Kent was pipped to the post only by Yorkshire at 13%.
The number of fixed penalty notices issued in 2010 fell by 10 per cent from 2009. Of those, just over half were speeding tickets.
The message to curb speed seems to be getting through. Statistics also tell us that the number of speeding fines issued in 2010 dropped for the fifth year running. A total of 986,000 were issued: a fall of more than half from the 2005 high of 1.98 million. The drop in the number of active speed cameras and more drivers taking part in awareness courses may well have contributed to the decline.
Late payment is not a good strategy. Late payers risk court involvement and significantly increased costs and fines. Each police force will approach the problem in its own way and some will extend the period for payment.
The figures show the following:
Worst at paying:
1 Gwent: 53 per cent
2 South Wales: 51 per cent
3 Dyfed-Powys: 41 per cent
4 Northamptonshire: 39 per cent
5 Dorset: 38 per cent
Fastest at paying:
1 North Yorkshire: 13 per cent
2 Kent: 14 per cent
3= Gloucestershire: 15 per cent
3= South Yorkshire: 15 per cent
3= Durham: 15 per cent
3= Cleveland: 15 per cent
Why pay more than you have to? If you are caught speeding it makes sense to pay on time - or if you want to dispute the offence make sure you act immediately and get advice on how best to make your case.
I have been participating in an online debate about the offence of using a mobile phone and it seems there is confusion and misinformation over what constitutes an offence, and what does not.
Courts view it seriously. Research suggests you are four times more likely to crash if you use a mobile phone while driving. Reaction times for drivers using a phone are around 50% slower than normal driving.
Police figures have illustrated that around 200,000 UK drivers are prosecuted for the offence annually, with more than 171,000 fixed penalty notices issued for the year ending October 2011, and an increase of 4,000 of the previous total recorded in 2006. An increase in the fixed penalty from £60 to between £80 and £100 is likely later this year.
A conviction can bite because it brings a fine, 3 points and a discretion to disqualify. The fine is much higher for drivers of goods vehicles and those adapted for carrying more than 8 passengers.
The exact legal position is that it is an offence to drive a motor vehicle on a road if at the same time the driver is using:
- a hand held mobile phone
- a device which performs an "interactive communication function by transmitting and receiving data"
A device is deemed to be a hand held one if at the time of its use it was being held. So if you have a hands free device in your hand, it is no longer hands free. A device performing interactive communication functions covers all smartphones whether being used to e mail, text or to photograph.
The same legislation also creates two other connected offences, namely causing or permitting a driver to use such a device, and supervising a learner whilst using such a device. You will cause or permit a driver to use a phone if for example you hold it to his ear as he drives. Employers may be open to prosecution if they require employees to make or receive calls whilst driving.
Offences committed whilst supervising a learner need no explanation.
So these are the three criminal offences connected with the use of a mobile device.
It's not an offence to cycle and use a hand held mobile phone. However it is possible to be prosecuted for careless or dangerous cycling.
A defence is available for emergency calls. The police officer usually asks the driver at the time he is stopped if he was making an emergency call.
The offence is committed when using such a device. It is not an offence to simply have a mobile in your hand, and I have read much misinformation about this. One mobile phone company I have been obtaining records from recently insists wrongly that simply to hold is an offence; it is not, and a prosecutor must introduce evidence of actual use. That usually comes from a police officer who saw the driver holding a phone and speaking. In serious cases involving accidents phone records can be obtained and can lead to an allegation of dangerous driving.
People sometimes ask if it’s permissible to use a mobile whilst stationary and the answer is that it depends on the circumstances.
The offence is using whilst driving and whether someone is “driving” in the context of many road traffic offences road traffic offences is quite widely defined. You do not need to be moving to be driving and so for example if you are stationary in traffic or in a jam, you are very likely to be “driving” and thereby commit an offence.
However, if it is obvious you have pulled over or are parked up and will not be moving, no offence is committed. This ought to be obvious to the police.
Defending such prosecutions is not straightforward. The prosecution must produce evidence of use, and seeing such cases in court one can be forgiven for thinking that the evidential burden is on the driver to prove he wasn’t using a mobile device. Most cases involve a police officer and a sighting of the driver speaking to a phone held to his ear, and such unchallenged evidence will be sufficient.
But officers do make mistakes. I hear drivers say they offered to show the phone to police who stopped them so the record can be seen there and then, and were met with a refusal. From what I can tell this seems quite common, although I don’t understand why. If records showing no telephone activity are produced in court this can all provide fertile cross examination material. The court only needs to conclude that the officer might have been mistaken and the driver is entitled to be acquitted.
And no, if you text someone while they are driving you do not commit an offence and you will not go to prison!