Using a mobile phone whilst driving – will you be caught out?

Everyone knows that if you’re caught using a hand-held mobile phone whilst driving a vehicle, it’s an offence which will see you be subject to  points endorsed on your licence and a fine (for offences committed post-March 2017, this will be 6 points and a fine of at least £200). This could result in you getting banned from driving if you ‘tot-up’ 12 live penalty points. Furthermore, if you were to cause damage/harm when on your phone whilst driving, you could be subject to much more serious charges such as careless or dangerous driving.

However, there’s been some confusion (and still remains so) about what actually means “using” a mobile phone in the phrase “using a hand-held mobile telephone or other hand-held interactive communication device” whilst driving. A recent case has stirred the interpretation of this definition up further. This is a somewhat expected development given the niche technological advances the ever-increasing globally-connected world has seen in the past decade.

In DPP v Barreto [2019], Mr Barreto was witnessed by police for taking a video recording on his mobile phone of a serious road traffic collision. It’s important to note that this recording was not being live-streamed or communicated to anyone else at the time of recording. Mr Barreto was convicted by the Magistrates Court but appealed the decision, and was successful in the Crown Court on the basis that filming or taking a photograph did not amount to “using” in accordance with the law. Therefore, the Prosecution appealed the Crown Court decision to the High Court.

The High Court dismissed the Prosecution’s appeal to the Crown Court. Crucially, the Court stated that “other hand-held interactive communication device” is defined as a devise which “performs an interactive communication function by transmitting and receiving data”. “Mobile phone” and “other hand-held interactive communication device” should not carry totally separate meanings. Accordingly, Mr Barreto was not “using” his mobile phone for any “interactive communication function” when filming the road traffic collision, so was not guilty of the offence. This was not being communicated to the outside world since he was not “transmitting or receiving data”, such as by speaking, texting or using the phone as a satnav. Although, if he was live-streaming (or communicating in some way) with the digital world, he will have been guilty of the offence.

It’s important to obtain expert legal advice if you think you’ve been caught under the offence of using a mobile phone whilst driving, or for any road traffic offence which can have devastating life-changing consequences on you, your family and your employer. Give our team of motoring law solicitors a ring today on 01924 379 078 for a no-obligation chat about your options, and how we can help you.