Using hand held mobile phone as "sat nav" whilst driving.

[roachcoach]

streaky said:

Regarding "hand-held", paragraph 110(6)(a) of the Regulations says: "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 a call or performing any other interactive communication function".

In paragraph 110(1)(a) cited above, "hand-held ..." refers to the action of holding the device. It is not a definition of the device. That is "mobile ...", per 110(6)(a).

The use of any device that is not - at the time - held in the hand is not subject to the Regulations. It matters not whether it is in a cradle, on the passenger seat, or stuck with parcel tape to the driver's ear.

Streaky

Has that ever been tested/agreed in court? I ask because I read it differently.

I'll freely admit it may be an unfamiliarity with legislative wording/my utter ignorance but as I read it as follows:

• You are not permitted to [use] [device] when driving.
• [Device] is specified as listed.
• Any [use] of [device] is contrary to regulations.

Qualifying [use] is not defined (although some examples are given they appear not to be exhaustive), nor is it specified that in order to contravene the regulations you must actually be touching it at the time, equally it does not state if you are not touching it then that is ok.

As I say, possibly ignorance on my part but I'm reading it as any [use] of a [device] which meets the criteria listed is a breach of regulation, it does not specify you need to be using one of the functions covered by the device categorisation.


I should also mention there's no consipiracy/tinfoil hat nonsense going on at my side, I'd fully expect this to be a) never used by the police and b) even if it did, the courts to boot it out.

Just my laypersons reading of it and I'm curious if these things have ever been defined/agreed/precedents set and so forth.

[y2blade]

joewilliams said:

crocodile tears said:

I've often wondered this too - been pretty much required on a couple of occasions to hold my phone acting as a satnav as there's been absolutely nowhere to put it and listening to it won't be much help.

Universal windscreen mounts cost ten or twenty quid.

Available for less than a tenner in many cases, there is no excuse.

[spikeyhead]

dibbers006 said:

y2blade said:

joewilliams said:

crocodile tears said:

I've often wondered this too - been pretty much required on a couple of occasions to hold my phone acting as a satnav as there's been absolutely nowhere to put it and listening to it won't be much help.

Universal windscreen mounts cost ten or twenty quid.

Available for less than a tenner in many cases, there is no excuse.

But according to legislation that makes no difference.

Then you've not read the legislation properly. You're only committing an offence if, as some point, you're holding the phone. If you have it in a holder then it's not an issue.

[daz3210]

So if a passenger dials a number, put the phone on speaker and I join in the resulting conversation, while driving, do I commit an offence if the passenger holds the phone not me?

It is in this instance hand held, used by me, while I drive.......

[Derek Smith]

CDP said:

If I was pulled on that one I think I'd be consulting a lawyer. I can only assume they would have to be illegally parked for the police to make that one stick. At what point are you not driving? Do you actually have to get out of the car?

Can the police be guilty of wasting police time, if that is actually an offence?

To take your last point first, that is indeed possible. I take it you have never met superintendents. It is not an offence that is charged often enough in my view.

You do not have to be illegally parked. Driving is a term that has been modified over the years. The last time it was of interest to me was nearly ten years ago so I assume it has been modified since. However, driving is a continuing act that does not stop if you just stop the car. There must be something else to show that you are not driving.

There was a case where a person stopped a car, got out, went up to a stall selling flowers, bought some and then was found to be still driving. This under the DD legislation. For that particular bit of legislation it makes perfect sense. I beleive there was one on my ground where a chap queued to buy chips and was found to be driving.

The problem is that there is no word to encapsulate, for instance, sitting in a car at a set of lights as opposed to stopped at the side of the road. The vehicle is not moving in both cases but there is a likelihood that the car in the traffic queue will be required to be moved in a little while. Can you come up with such a word?

Statutes have, historically, been poorly worded and have often required 'clarification'. There is even a little publication of the HO that comes around regularly which often includes directions to, in effect, ignore what was written.

For a short while, which was too long, I had to write comments on new legislation, a Criminal Law Act was the biggest that I had to do. After some problems with the wording I took it to a judge to ask his point of view as much would have been produced in front of him at a trial or hearing. I told his clerk that it required 30 minutes of his boss's time.

As soon as I told him what the act was he said I should not worry as the legislation was so poorly worded, so contradictory, that it would be replaced within a few weeks. It took months because, I was told, the HomeSec would not accept that he was talking rubbish and contradicting established legal principles. I was then invited for lunch by the resident judge.

This was a HomsSec. A poor one, in my opinion the worst this country has seen in my time, but still a HomeSec. The legislation, it was major legislation as well, was unworkable.

We all make mistakes. But then we all do not have loads of advisors, well up on legal matters, o refer to.

[once]

Derek Smith said:

Streaky,

I thought you'd met MPs.

Do you think you can give a rough estimate how many MPs know what the legal definition of driving is without using the word none?

I had to prepare proformas for an update in regs. I understand how to interpret statutes, or at least I know my limitations. I noted that the wording had changed on one particular paragraph and the way I understood it if wording changes then it is implicit that be some form of change is intended. I interpreted it literally, ran it past the CPS and even mentioned it to a judge, all of whom agreed with my interpretation. My proforma was used by at least seven other forces.

The HO then came back, some months and some cases later, and stated that the interpretation was wrong and that the HomeSec did not fully realise the implication of the change. This was the HomeSec whom, one would have thought, had legal advisers and such. The problem with advisers is that you have to listen to them.

I admire your faith in MPs. I do not necessarily share it.

In 95% of cases, when a Minister says something they are repeating what a civil servant has told them. There is no way that one person can know everything that they would need to know to fulfil the job of being a Government minister. So in the case you have described, the home secretary was almost certainly just passing on legal advice from his department.

So if there was a mistake in the instance you quote, it is much more likely to have been made by civil servants than Ministers.

Mistakes do happen when legislation is written. Sometimes a piece of legislation is just plain wrong. Sometimes it is ambiguously worded so that it is capable of more than one interpretation. On some occasions there is nothing wrong with the original legislation, but case law takes it in an unintended direction. Or technology overtakes it and makes the legislation obsolete.

That's why we have a process of constantly amending legislation. Mistakes are corrected in subsequent acts. Guidance from Ministers (really from their civil servants) adds new interpretations or changes old ones.

The one bit I wouldn't agree with is that changed wording implies a change of meaning. Governments will change wording of legislation or guidance for several reasons but without altering its meaning - eg to make text clearer to read, consistent with other documents or to make it gender neutral.

[Derek Smith]

once said:

The one bit I wouldn't agree with is that changed wording implies a change of meaning. Governments will change wording of legislation or guidance for several reasons but without altering its meaning - eg to make text clearer to read, consistent with other documents or to make it gender neutral.

When I got this job of commenting on new law, mainly regs but the occasional bit of statute, I was briefed by CPS, and given a rather complicated book, on the interpretation of statutes and was told that if, for instance word A was used in para 1 and word B used in para 2 but they were of similar meaning then it must mean that the two words were to be interpreted differently. It was similar, I was told, to legislation/regulation where a word was changed on an update. If the phrase was different it was different for a reason. New word/new phraseology means new meaning.

In the event that a phrase gave rise to confusion (as if!) and the update is to clarify this is normally mentioned although, of course, it need not as the new wording will give a new meaning.

I take your point about regulations being prepared by those other than MPs. However, it is not only civil servants. Sometimes it is academics and it goes through on the nod.

[Ms Demeanor]

R0G said:

Ms Demeanor said:

I would hope if you read through all the posts you would appreciate how complicated this area law is

Would you agree with me that making a law which stated no electronic communication when driving is better?

Yes something along those lines would be better - but how does that deal with the hands free issue? "You must not drive a motor vehicle on a road whilst using any hand held communication device...."

[Ms Demeanor]

sebdangerfield said:

Ms Demeanor said:

That was Jimmy Carr. It was in the mags court so did not set a precedent that would bind any other court(unfortunately).

I have come up against the prosecutor that lost that case and she has stated "I will never lose another like that again!!" It is not up to her going forward but she took it hard.

Every element of respect and admiration I once had for your posts has disappeared with one cliche!

Sorry, darn it!

[roachcoach]

Ms Demeanor said:

R0G said:

Ms Demeanor said:

I would hope if you read through all the posts you would appreciate how complicated this area law is

Would you agree with me that making a law which stated no electronic communication when driving is better?

Yes something along those lines would be better - but how does that deal with the hands free issue? "You must not drive a motor vehicle on a road whilst using any hand held communication device...."

I think the crux of the issue is they've tried to legislate common sense into people. That rarely works well.

I've said before, imho we didn't need the law and all the nonsense it creates. We had perfectly useful, usable existing legislation we could have used to prosecute drivers being stupid.

If people are so stupid as to be unable to quantify the risk changes on using a phone in a given situation and how that will vary each time, a law won't help them.

[Zeeky]

streaky said:

Regarding "hand-held", paragraph 110(6)(a) of the Regulations says: "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 a call or performing any other interactive communication function".

In paragraph 110(1)(a) cited above, "hand-held ..." refers to the action of holding the device. It is not a definition of the device. That is "mobile ...", per 110(6)(a).

The use of any device that is not - at the time - held in the hand is not subject to the Regulations. It matters not whether it is in a cradle, on the passenger seat, or stuck with parcel tape to the driver's ear.

I do not think that is the correct interpretation. "hand held" is a definition to be applied to "mobile phone" or other device. It is a definition of a "hand held mobile phone" as distinct from a "mobile phone" or other device.

There are two parts to the definition.

Firstly, "is" which as you note refers to using the phone and holding it.

Secondly, "must be" which doesn't require the user to actually hold the phone. Merely that the phone must be held to perform any "interactive communication function".

There is obviously no offence unless the "phone" is being used.

If the "phone" is being used it matters not that it "is"being held, only that it "must be" held to perform any "interactive communication function" In other words, if the phone needs to be held for any of its "interactive communication functions" it is irrelevant whether or not the particular function the phone is being used for requires holding the phone.

There are two ways around the legislation. Firstly, before you drive you set the phone up so it does not need to be held to be used for any of its "interactive communication" features. That deals with "must be" and "is".

The second way is to argue that "mobile phone" is a number of separate devices within an object and that if you are using a device other than one involving "interactive communication" you are not using a mobile phone or other hand-held device.

I think the second approach is risky. It is an unusual way of using the word "device" and of course each separate function may rely on some of the same components making the argument of separate devices more difficult to make.

[roachcoach]

Zeeky said:

There are two ways around the legislation. Firstly, before you drive you set the phone up so it does not need to be held to be used for any of its "interactive communication" features. That deals with "must be" and "is".

I'm in agreement with the rest of your post insofar as you read it as I do, but this quoted part is impossible unless there's full on voice recognition & activation for internet/text messaging.

(Regarding the internet mention even the venerable Nokia 2210 could get on WAP)


It's sunk by the catch all "or performing any other interactive communication function"

It doesn't seem to matter if you're not using that function, it's that IF you do, you need to touch it. Whether that particular function is in use at any given point seems irrelevant, hence my remark about it locked in a boot streaming over BT to play music still 'using' a device when driving and a device which meets the listed criteria of a 'hand held mobile telephone'.

You may escape under the 'spirit' of the law, but as I say, as I read it the letter of the law is a huge catch all.

Edited by roachcoach on Friday 13th April 10:35

[bryan35]

Just wondered if having the phone in 'Flight Mode' would make any difference?

No communication at all then, but it would still work as a sat nav/music player.

(not read all the thread so appologies if this has already been mentioned)

[streaky]

Derek Smith said:

streaky said:

f a different definition of "driving" had been intended (from that already established), one would have been defined in the Regulations.

Streaky

Streaky,

I thought you'd met MPs.

Do you think you can give a rough estimate how many MPs know what the legal definition of driving is without using the word none?

I had to prepare proformas for an update in regs. I understand how to interpret statutes, or at least I know my limitations. I noted that the wording had changed on one particular paragraph and the way I understood it if wording changes then it is implicit that be some form of change is intended. I interpreted it literally, ran it past the CPS and even mentioned it to a judge, all of whom agreed with my interpretation. My proforma was used by at least seven other forces.

The HO then came back, some months and some cases later, and stated that the interpretation was wrong and that the HomeSec did not fully realise the implication of the change. This was the HomeSec whom, one would have thought, had legal advisers and such. The problem with advisers is that you have to listen to them.

I admire your faith in MPs. I do not necessarily share it.

Derek - I have slightly more faith in the drafters, than in MPs. IIRC, scrutiny of the Regulations was, in context, superficial.

Streaky

[agtlaw]

Ms Demeanor said:

Your views please...?

This is becoming an increasing problem. Phones have so many functions. What about Iphone with Ipod on it connected up to car stereo - changing tracks....

Do you think you have to be using a phone as a phone (texting/calling) to be guilty?

"Interactive communication function..." ?

I have my iPhone in airplane mode, fixed to the windscreen with the tomtom app running. I'd welcome the police to prosecute me. We could set a precedent in the high court.

nb it's in airplane mode to prevent interactive communication. E.g. If a text were sent to me then i'd be guilty of an offence if I read it whilst driving.

The law in E&W clearly needs amending. I've researched comparative legal systems. New York state and Australian legislation more properly define the offence.

[Ms Demeanor]

agtlaw said:

Ms Demeanor said:

Your views please...?

This is becoming an increasing problem. Phones have so many functions. What about Iphone with Ipod on it connected up to car stereo - changing tracks....

Do you think you have to be using a phone as a phone (texting/calling) to be guilty?

"Interactive communication function..." ?

I have my iPhone in airplane mode, fixed to the windscreen with the tomtom app running. I'd welcome the police to prosecute me. We could set a precedent in the high court.

nb it's in airplane mode to prevent interactive communication. E.g. If a text were sent to me then i'd be guilty of an offence if I read it whilst driving.

The law in E&W clearly needs amending. I've researched comparative legal systems. New York state and Australian legislation more properly define the offence.

All understood and agreed. It's an interesting area of law and ripe for multiple challenges. I am talking to a chap on the phone as typing about using a phone without a sim card as an mp3 player. Its all good stuff for lawyers - but very confusing for the plod and the general public.

[once]

Derek Smith said:

When I got this job of commenting on new law, mainly regs but the occasional bit of statute, I was briefed by CPS, and given a rather complicated book, on the interpretation of statutes and was told that if, for instance word A was used in para 1 and word B used in para 2 but they were of similar meaning then it must mean that the two words were to be interpreted differently. It was similar, I was told, to legislation/regulation where a word was changed on an update. If the phrase was different it was different for a reason. New word/new phraseology means new meaning.

In the event that a phrase gave rise to confusion (as if!) and the update is to clarify this is normally mentioned although, of course, it need not as the new wording will give a new meaning.

I take your point about regulations being prepared by those other than MPs. However, it is not only civil servants. Sometimes it is academics and it goes through on the nod.

That's an interesting perspective, Derek. My training in this came from a different direction. Between 1985 and 1999 I was a Whitehall policy civil servant. Some of the jobs I had during that time involved writing new legislation, instructing parliamentary counsel and writing official guidance.

You're absolutely right. If paragraph A had one term and paragraph B had another - in the same document - then it would be reasonable to assume that there was a difference in meaning between the two. I thought you meant that the terminology had changed between two different editions of the same document.

[Zeeky]

roachcoach said:

Zeeky said:

There are two ways around the legislation. Firstly, before you drive you set the phone up so it does not need to be held to be used for any of its "interactive communication" features. That deals with "must be" and "is".

I'm in agreement with the rest of your post insofar as you read it as I do, but this quoted part is impossible unless there's full on voice recognition & activation for internet/text messaging.


It's sunk by the catch all "or performing any other interactive communication function"

It doesn't seem to matter if you're not using that function, it's that IF you do, you need to touch it. Whether that particular function is in use at any given point seems irrelevant, hence my remark about it locked in a boot streaming over BT to play music still 'using' a device when driving and a device which meets the listed criteria of a 'hand held mobile telephone'.

I thought the driver needed to hold the phone rather than just touch it. If the phone is in a cradle the driver can create and send a text without contravening the regulation. If the phone has a loudspeaker function then a call can also be made and received without the driver needing to hold the phone.

If holding a phone that is switched off is not an offence then one that is in 'flight mode' should also no be an offence.

[agtlaw]

Zeeky said:

If the the phone is in a cradle the driver can create and send a text without contravening the regulation.

bizarre opinion. Completely wrong of course.

[Odie]

I've used a mobile phone as a sat nav for 5+ years never had a problem, its in a cradle that attach's to the windscreen and uses a tomtom app.

i think the key here is 'hand held' don't hold it in your hand and your fine.