Nicked on phone

[The Mad Monk]

tapereel said:

Red Devil said:

marshalla said:

Red Devil said:

I'm a tad unclear what you mean by this double negative. If you are contending that the 'interactive communication function' aspect is irrelevant, then what is the purpose of C&U Regs Section 110(6)(a)?

Not necessarily irrelevant, just not defined.

S110 says you must not use a mobile phone.

No it doesn't.

The Road Vehicles Construction and Use Amendment No. 4 Regulations 2003 said:

110.—(1) No person shall drive a motor vehicle on a road if he is using—

(a)a hand-held mobile telephone;

Those two extra words which you omitted above are crucial.

marshalla said:

It defines a mobile phone as a handheld device which can perform interactive communications.

It doesn't say whether or not "using" only deals with the communications function, or if it covers all possible uses of the device.

I beg to differ

The Road Vehicles Construction and Use Amendment No. 4 Regulations 2003 said:

(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 a call or performing any other interactive communication function;

Imo that is quite specific. If there is not, nor has been at any time, an interactive communication function involved in what you are doing then it is not a hand held device for the purposes of the Regulations and no offence has been committed.

The clock display on a mobile phone is clearly not any type of call. Nor, AFAIK, does it depend on an interactive function. It's the same RTC as you will find in any PC/laptop. I can set it to any time & date I fancy without communicating with anything/anybody.

For the avoidance of doubt, communication for the purposes of the legislation covers voice and data (of any kind).

marshalla said:

Hence the arguments. There are very similar devices, without the communications function, which can be used in almost identical ways, but are not illegal to use because of the way the law is written. Then there are other communications devices which are explicitly legal to use. It's not clear if communication is the problem, or distraction by a complex device.

There's an implication, possible even an intent, which has yet (AFAIK) to be resolved in the higher courts - and until that happens, everything is just opinion.

Indeed. As tapereel quite correctly states Parliament makes law. However what he fails to mention is that we don't have a Napoleonic system in the UK and it is for the judiciary to interpret, and clarify where necessary, what the law makers intentions were. Unless specifically stated otherwise words are to be given their ordinary day-to-day meaning.

As I pointed out earlier, the march of technology and the proliferation of multi-function devices make it difficult for legislators. A law which was enacted at a time when such a device either didn't exist or did not have a particular capability means that it can become a minefield for enforcement. One which is drafted too loosely or too widely is likely to have consequences. These will range from either being constantly challenged, pragmatically not being enforced, or simply falling into disregard/disrepute. None of these outcomes are good for society.

agtlaw said:

There is a Scottish case. Brocklebank was cleared at first instance of using a mobile phone. He contended that the offence is not made out by simply holding the phone.

Very interesting. Thank you.

agtlaw said:

The appellate court declined to interfere with that decision.

I don't think I've seen the judgment, so I'm unclear how authoritative the judgment is in Scotland, and in any event it would only be persuasive in the civilised world.

All of the sources I have been able to find say that JP Harry Terrell at Cupar District Court decided there was no case to answer and that the Crown was considering whether to appeal. However I can't find anything to substantiate whether or not it did. Of course that leaves any other court to come to a different conclusion.

If the PF chose not to take it further then that is quite telling. Do courts in E&W take much notice of any decision(s) taken at a similar level north of the border?

Sub-section 6 is "quite specific". It specifically describes what a hand-held mobile telephone is. Where you go wrong in your reasoning is that sub-section 6 is SPECIFCALLY NOT part of the offence, the offence is specifically in sub-section 1.

You also err in your interpretation or have missed what I have writen as I said specifically that interpretation of the using, from evidence of that use is for a court to decide. The courts decide on guilt from evidence presented. There is little for the court to decide on in terms of interpretation of the law because the offence is very clearly written as you quoted above:
110.—(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 paragraph (4).

(4) A device referred to in paragraphs (1)(b), (2)(b) and (3)(b) is a device, other than a two-way radio, which performs an interactive communication function by transmitting and receiving data.

...and (6) that desribes the device.

None of that says that the device is performing that interactive communication during the use just that it is such a device and it is that device that you must not use.

As it happens I know who drafted the regulation and my interpretation, the literal interpretation, is what the court visits first and it is what was intended by the person drafting and Parliamemt who subsequently passed that.

This prevents the need to update the law with technology, it prevents complex gathering of technical evidence and as such is easy to implement and enforce by the police and courts; more importantly the catch-all "using" means it has the capability, when enforced, to provide the maximum deterrent.

So don't use your hand-held mobile telephone while driving and holding it, coz u can't, n' that's wot the law sez.

Edited by tapereel on Thursday 1st September 06:46

Quite.

As I said at 07.11 on Wednesday:-

"To me, it makes perfect sense.

"If you haven't got hands free, leave the phone alone! Don't touch it!

"There now. That wasn't too difficult, was it?

I couldn't really be much simpler - could it!

[ModernAndy]

johnfm said:

ModernAndy said:

johnfm said:

My preference would be for evidence based policing. Mobile phone subscriptions have increased substantially in the last few years. Have collisions per mile driven increased to the same extent? I don't think there is correlation let alone causation in the accident data. It is yet another 'offence' with little or no basis in evidence.

Cue links to studies showing distraction and less attention during mobile phone use (even with a hands free). But are there more collisions?

Hopefully this really doesn't need pointed out but avoiding collisions and fatalities aren't the only considerations of the law.

Agree, but they are one of the main influencers of road traffic laws, no?

Yes, of course. However, certain laws are in place not to protect lives but to make the roads work well. For example, middle lane hogging isn't particularly dangerous but it's illegal because it causes inconvenience and reduces the working capacity of the roads. For the same reason, I don't want people distracted from their driving even if they are stopped at a set of traffic lights. The law seems to agree.

[tapereel]

The Mad Monk said:

Quite.

As I said at 07.11 on Wednesday:-

"To me, it makes perfect sense.

"If you haven't got hands free, leave the phone alone! Don't touch it!

"There now. That wasn't too difficult, was it?

I couldn't really be much simpler - could it!

I can't see how it could be made any simpler.

It seems only to be complicated in hopeful attempts by drivers caught out to form a defence.

[agtlaw]

Red Devil said:

All of the sources I have been able to find say that JP Harry Terrell at Cupar District Court decided there was no case to answer and that the Crown was considering whether to appeal. However I can't find anything to substantiate whether or not it did. Of course that leaves any other court to come to a different conclusion.

If the PF chose not to take it further then that is quite telling. Do courts in E&W take much notice of any decision(s) taken at a similar level north of the border?

Here is a newspaper report of the appeal decision.

http://www.thescottishsun.co.uk/scotsol/homepage/n...

It depends. Sometimes.

[The Mad Monk]

Red Devil said:

Do courts in E&W take much notice of any decision(s) taken at a similar level north of the border?

No.

Nil.

None.

Not at all, at all. (Oh no! Wrong language!)

[Red Devil]

agtlaw said:

Red Devil said:

All of the sources I have been able to find say that JP Harry Terrell at Cupar District Court decided there was no case to answer and that the Crown was considering whether to appeal. However I can't find anything to substantiate whether or not it did. Of course that leaves any other court to come to a different conclusion.

If the PF chose not to take it further then that is quite telling. Do courts in E&W take much notice of any decision(s) taken at a similar level north of the border?

Here is a newspaper report of the appeal decision.

http://www.thescottishsun.co.uk/scotsol/homepage/n...

It depends. Sometimes.

Thanks.

Must brush up on my search terms!

[tapereel]

The Mad Monk said:

Red Devil said:

Do courts in E&W take much notice of any decision(s) taken at a similar level north of the border?

No.

Nil.

None.

Not at all, at all. (Oh no! Wrong language!)

They do in my experience. How about yours?

[Fastpedeller]

Countdown said:

I think seizing the phone would be more effective. Phone & sim to be returned upon payment of fine equal to the new price of the phone.

In my case (I don't touch phone whilst driving), but it would only be £12........ very cheap, simple phone - just like the driver really

[tapereel]

Fastpedeller said:

Countdown said:

I think seizing the phone would be more effective. Phone & sim to be returned upon payment of fine equal to the new price of the phone.

In my case (I don't touch phone whilst driving), but it would only be £12........ very cheap, simple phone - just like the driver really

Maybe start with a minimum of £100 and 6 points then.

[hutchst]

The Mad Monk said:

To me, it makes perfect sense.

If you haven't got hands free, leave the phone alone! Don't touch it!

There now. That wasn't too difficult, was it?

But in the context that it would not neccessarily be illegal to use your TomTom, iPod, dictaphone or even these days dashcam in exactly the same way, then surely this law is at least a bit pony if not a complete ass?

[talksthetorque]

hutchst said:

But in the context that it would not neccessarily be illegal to use your TomTom, iPod, dictaphone or even these days dashcam in exactly the same way, then surely this law is at least a bit pony if not a complete ass?

What it does of course
cover is anyone with a phone saying I wasn't texting, I was using my satnav. So maybe not always such an ass. You can of course still get done for other things if you do a Frank Drebben into some bins while you were using your nav.

[agtlaw]

Department for Transport, 2003.

"Hand-held phones

9. During the consultation, concern was expressed about the proposed definition of hand-held phones. The consultation document suggested that only those phones that had fixed speakers should be regarded as hands-free phones. However, there are numerous types of hands-free phones and kits to convert hand-held phones to provide some level of hands-free use.

10. We now consider that a more practical approach would be to prohibit the type of activity rather than to try and define different devices. The offence will therefore apply to drivers speaking or listening to a phone call, using a device interactively for accessing any sort of data, which would include the Internet, sending or receiving text messages or other images if it is held in the driver's hand during at least part of the period of its operation. We do not wish to prohibit the carrying of hand-held phones in vehicles or require them to be switched off. A phone may therefore continue to be used to receive data when it is in a vehicle providing the driver is not holding it.

11. Within the context of holding a phone, pushing buttons on a phone while it is in a cradle or if it is being operated via buttons on the steering wheel or handlebars of a motorbike would not, in our view, breach the new regulation."

[Red Devil]

10. is interesting. Back to my point about the date and time display on the screen of my mobile. AFAIK this does not require any sending or receiving of data or interactive function whatsoever. It is supplied by an internal chip just like my laptop. No wireless connection, no internet, nada.

It's no more dangerous or distracting than a glance at my watch. No offence committed by my doing that. I appreciate that if an officer considers I am not in control he can pull me for that but it's a different charge.

For the absence of doubt I'm just asking out of curiosity. I don't use my mobile for telling the time: it resides in the glove compartment when I'm driving.

[4rephill]

Red Devil said:

......It's no more dangerous or distracting than a glance at my watch. No offence committed by my doing that. I appreciate that if an officer considers I am not in control he can pull me for that but it's a different charge...

The principal behind the Law is basically the same as not being in full control of the vehicle, hence why it's worded to cover actually holding a mobile device, rather than looking at a mobile device without actually holding it (an offence caused by just looking at a mobile device, be it a phone or sat-nav or whatever, can be covered under driving without due care and attention).

If the offence was based purely on the driver being distracted by the device then using a sat-nav would have to be illegal.

You say that looking at the time on a mobile phone is no more distracting than looking at the time on your watch - but is it?

To look at the time on your watch whilst driving, your watch is already conveniently located in the car on your wrist, so you do not have to have to take your hand off the steering wheel in order to find it, and, by design it is completely hands free.

A mobile phone on the other hand tends to be be either stashed away in a cubbyhole somewhere or (in the case of many female drivers), sat in a handbag where it needs digging out of. As soon as you remove your hand to try and locate your phone, not only are you no longer in full control of the vehicle in the eyes of the Law, but you are also introducing an element of distraction as you are no longer focussed 100% on your driving.

Then, to look at the time, you have to physically hold it in your hand.v Added to that, depending on the model of phone and how it is actually set up, you may need to unlock the phone to display the time, or purposely activate the clock display itself - More distractions.

So in reality, whilst the actual "looking at the time displayed" on a mobile phone may be no more distracting than looking at the time displayed on a wristwatch, the process of getting the phone to look at the display is more distracting (unless you're strapping your phone onto your wrist! - But then you're going to look a bit of a knob really!)

[techguyone]

I never got my head round the fact that a walkie talkie (handheld radio transceiver) is legal but not a phone.

[Red Devil]

4rephill said:

The principal behind the Law is basically the same as not being in full control of the vehicle, hence why it's worded to cover actually holding a mobile device, rather than looking at a mobile device without actually holding it (an offence caused by just looking at a mobile device, be it a phone or sat-nav or whatever, can be covered under driving without due care and attention).

If the offence was based purely on the driver being distracted by the device then using a sat-nav would have to be illegal.

You say that looking at the time on a mobile phone is no more distracting than looking at the time on your watch - but is it?

Were I so inclined, yes. See below.

4rephill said:

To look at the time on your watch whilst driving, your watch is already conveniently located in the car on your wrist, so you do not have to have to take your hand off the steering wheel in order to find it, and, by design it is completely hands free.

I did a little experiment on my way to the shops to test that. I can't see the watch face when my hands are in their normal position. I have to shift my left hand slightly and rotate my wrist. However I still have the problem of the face being obscured by my shirt cuff. So I either have to move my arm/hand to a significantly different position on the wheel (not ideal) or take my other hand off it and flick back the cuff with my fingers (as bad if not worse).

4rephill said:

A mobile phone on the other hand tends to be be either stashed away in a cubbyhole somewhere or (in the case of many female drivers), sat in a handbag where it needs digging out of. As soon as you remove your hand to try and locate your phone, not only are you no longer in full control of the vehicle in the eyes of the Law, but you are also introducing an element of distraction as you are no longer focussed 100% on your driving.

Then, to look at the time, you have to physically hold it in your hand.v Added to that, depending on the model of phone and how it is actually set up, you may need to unlock the phone to display the time, or purposely activate the clock display itself - More distractions.

So in reality, whilst the actual "looking at the time displayed" on a mobile phone may be no more distracting than looking at the time displayed on a wristwatch, the process of getting the phone to look at the display is more distracting (unless you're strapping your phone onto your wrist! - But then you're going to look a bit of a knob really!)

I see where you're coming from.

However if I did want to use it for checking the time it wouldn't be stashed away in the glovebox in the first place (I don't have a handbag: I'm not female). It would be parked where I knew I could easily reach it with my left hand without taking my eyes off the road (I'm a non-smoker so the ashtray would do fine. It would also be set up that I didn't need to unlock it (or press any other button for that matter). Bringing it into my peripheral field of vision wouldn't be difficult. A quick flick of my eyes to the left: job done.

If taking one's hand off the wheel is the issue, replace the bit in bold above with 'turn the radio/cd player on/off' (I'm not into high tec stuff). Or 'change gear'. The latter is a designed-in feature of the car which I have no choice but to use if I am to go anywhere. I do it far more often than needing to know the time! So do either of these actions imply 'not in control'? If so, there are a heck of a lot of unsafe drivers on our roads.

[hosedoctor]

WOW! As the OP on this I didn't think it would run for nine pages LOL. We'll I've I revived a notice to get 3 points and a £100 fine, now should I deny it and go to court or take it? It's my word against the officer isn't it? They can check my phone records and see I wasn't on the phone plus the officer was on his own? And please don't think I have anything again the officer in question because I haven't in fact he was a very nice fella.

[Countdown]

I think it's been pointed out that you don't actually have to have been "ON" the phone to be guilty of the offence. Holding the phone whilst using it to tell the time would make you guilty.

[Red Devil]

It's not the police you really need to concern yourself with. It's the magistrates. You have to be able to convince them there is sufficient doubt about what the officer thinks he saw. If you have already admitted to him that you were looking at it to tell the time then I reckon you're going to need representation in court (see the Brocklebank links previously posted) The only person on here thus far who could give you some sage advice is agtlaw. The rest are either agents of the state or don't have the necessary expertise (including me: I was just asking on a technical point).

[hosedoctor]

Countdown said:

I think it's been pointed out that you don't actually have to have been "ON" the phone to be guilty of the offence. Holding the phone whilst using it to tell the time would make you guilty.

AAAAH yeah good point! Lol