Even selecting your music while at a standstill could lead to six points and a £200 fine…
Can you remember which mobile phone you had in 2003? I can’t, but I know it didn’t have social media on it. Back then, Facebook and Twitter were still a couple of years away. And my device didn’t have a sat-nav either. I used my phone for making voice calls (remember them?).
2003 was the year that the new mobile phone legislation came into being; 1st December 2003 to be exact.
Fines of £60 and three penalty points arrived in 2007, the fines rose to £100 in 2013 and then in 2017 £200 fines arrived, along with six points on your licence.
Coincidentally, also in 2017, Ramsey Barreto was driving past the scene of a collision in Ruislip and was prosecuted for filming the scene on his mobile phone. On conviction he appealed and in 2019 that appeal was upheld in the high court. He hadn’t been using his phone as an interactive communication device; he’d been using the camera – a standalone feature – not making a call. While mobile phones were morphing into what they are today, and the penalties for using one were growing, the law wasn’t keeping pace with technology.
Making calls – or even dialling a number before placing a mobile phone back into a cradle or back into a pocket to continue a conversation via a comms system – while stationary at traffic lights is something I’ve seen both car drivers and motorcycle riders do. But that’s illegal and it always has been, so how does the new legislation that’s under consultation impact us as motorcyclists?
Well, if you use your phone as a sat-nav then you’ll have to input all the details – or select the music you want to hear on your comms – before you turn on the engine, because any interaction with a phone that isn’t in a mount (including quickly taking it out of a pocket to check the time while stopped at traffic lights) will incur the full penalty of six points and a £200 fine; being stopped in a traffic jam is still classed as driving/riding.
If riders have held their licence for less than two years – and I’ve seen more younger scooter riders than big bike riders whip their phone out at the lights – then they’ll lose their licence.
There are plenty of scare stories and urban legends about motorcyclists being prosecuted for making a call while sat at the side of the road, but the law isn’t as clear-cut as you might hope.
The exact definition of what constitutes ‘driving’ isn’t fully defined and each matter should be judged on facts and degree – or so the Crown Prosecution Service says – but as long as the bike is legally parked and the engine off then it’s not deemed as driving / riding.
The legislation doesn’t affect the use of a device that’s mounted to the bike or car. Equally, as it’s not a hand-held microphone, you can continue to use your phone linked through a Bluetooth helmet intercom, for instance.
But, it’s still your responsibility to not be distracted from the road by any device, so while the law specifies not fiddling with a phone to select destinations, scrolling through playlists or even writing a text or email while it’s in your hand, you could still face prosecution for driving or riding without due care and attention when the phone is in a cradle if you’re doing anything much more than a short tap to change route or click ‘answer’ to a call, for instance.
Ultimately, the Highway Code has, and will continue to point out that using a hands-free telephone or similar device is safer when you’re parked.
During the case of Edkins vs Knowles in 1973, a judge deemed that ‘driving’ included all the operations of stopping driving, so applying the handbrake and switching off the engine. That makes logical sense.
But another judge in the case of Pinner vs Everett decided that a person could be driving even though they had turned off the engine and got out of the car. That one is exceptional though and wouldn’t stand on a mobile phone charge. In my view, to try and run those prosecutions for a mobile phone charge wouldn’t be in the public interest.
So… you should be legally parked with the engine off before you use any handheld device; the legislation is meant to address road safety and so the questions around whether the keys are still in the ignition could mean going to court to let them decide.
Realistically, most drivers get tickets for mobile phones when the officer sees them with their hand on the phone while driving, and most of those people don’t know the full (current) legislation and so accept the tickets.
But some drivers go to court, and we end with all the loopholes being closed as per the new proposed legislation…
It’s using a hand-held device that could land you in court, so make sure your phone is securely mounted and don’t be distracted by it
Rule 149: “You MUST exercise proper control of your vehicle at all times. You MUST NOT use a hand-held mobile phone, or similar device, when driving or when supervising a learner driver, except to call 999 or 112 in a genuine emergency when it is unsafe or impractical to stop. Never use a hand-held microphone when driving. Using hands-free equipment is also likely to distract your attention from the road. It is far safer not to use any telephone while you are driving or riding – find a safe place to stop first or use the voicemail facility and listen to messages later.
“You may park your vehicle using a hand-held remote control app or device. The app or device MUST be legal, and you should not put other people in danger when you use it.”
“You MUST exercise proper control of your vehicle at all times. You MUST NOT use a hand-held mobile phone, or similar device capable of interactive communication, (such as a tablet) for any purpose when driving or when supervising a learner driver. This ban covers all use of a hand-held interactive communication device and it applies even when the interactive communication capability is turned off or unavailable. You cannot pick up the phone to dial a number and then put it in the cradle for the duration of the conversation. You also cannot use your hand-held device while stationary in traffic, that is still driving.
“There is an exception to call 999 or 112 in a genuine emergency when it is unsafe or impractical to stop. There is also an exception if you are using a hand-held mobile phone to make a contactless payment, while the vehicle is stationary, for goods or services that you will be receiving immediately.
“You may park your vehicle using a hand-held remote control app or device. The app or device MUST be legal, and you should not put other people in danger when you use it.
“Never use a hand-held microphone when driving.
“It is far safer not to use any telephone or similar device while you are driving or riding - find a safe place to stop first or use the voicemail facility and listen to messages later.”
In the eyes of the law, stop/start engines are still considered to be running when they’re auto-stopped, for instance when waiting at traffic lights (where you’re also not legally parked either!).
There are a number of different ways a driver can be dealt with, from advice to court proceedings.
Lower level offences that could come under Driving Without Due Care can, if an officer witnesses it, also be dealt with by way of a Traffic Offence Report; the driver is reported at the time but the decision on how to proceed is made by member of staff working in the backroom. The offer of an educational course may be made along with that of a fixed penalty. If a fixed penalty is issued at the roadside, it removes the option of an educational course from the decision-making process. These options will only be used for offences observed by the police, where there are no victims, no injuries and no public complaint, and would mean a £100 fine and three points. But it was hoped that most would go to driver education, which is payable but means no points are awarded, somewhat dispelling the myth that it funds the police Christmas party.
The offence of using a mobile phone while driving could fall under a more serious level of Driving Without Due Care, but would also mean the police would have to complete summons files, and would involve a potentially costly and time-consuming court case, all of which are being streamlined. As there is already a means of avoiding these costs – by giving a fixed penalty for using a mobile phone – it makes sense to tighten that legislation up as proposed by the government.
With the fixed penalty for using a hand-held device set at £200 and six points, it’s still potentially less than the fine and disqualification (or up to nine points) for a high-level Driving Without Due Care but it does streamline the process. However, if a person already has six points then they’ll be off to court. Officers can check at the roadside to see how many points the offender has, again somewhat dispelling the myth that the police are out to make money.
There are plenty of ‘what if I’m doing this or that’ situations that people will throw up, and ultimately it’s those that were used by lawyers and led to the tightening of the law.
Having a fixed penalty system specifically for hand-held devices, which can be used with very simple evidence, makes it easier to prosecute drivers for actions that can lead to serious injuries or death. Driving Without Due Care is not quick and easy to apply, especially without an officer witnessing the offence. But if a collision occurs and somebody dies under one of these ‘what if’ situations, it won’t just be £200 and six points, and the offender won’t be charged under any phone legislation...
The new law is actually really good news for us motorcyclists; a piece of work carried out by RoSPA showed that 64% of collisions involving motorcycles in 2016 occurred at a junction.
I’ll say that again… 64%.
Think about junctions and the small queue leading up to it; how often do you see car drivers with their heads down looking at their phones, not paying attention to what’s going on. Almost every time the traffic stops, the heads go down, then the queue moves without them noticing and they’re all rushed to get a move on, none of the time paying full attention.
The police often rely on footage sent to them by other motorists, cyclists or indeed motorcyclists to secure convictions – forces receive a video without context and as they weren’t there at the time and didn’t speak to the driver, the police have no way of knowing what the device was actually being used for, so the loophole in the out-dated legislation made securing a conviction far from guaranteed.
The new laws will mean there’s no get-out clause for those who say “I wasn’t using an interactive communications part of my phone.”
All the excuses that people have used are covered by the proposed list of actions, which will be against the law while holding a phone or similar device when driving/riding. These will include
There will be exemptions, like making a contactless payment on a toll road, paying at a drive-through restaurant or phoning the emergency services, but for everything else a simple video or photo of a driver or rider touching their phone outside of a cradle will be all that’s required to complete the offence.
The government’s consultation paper runs from 17 October 2020 to 17 January 2021, so if you disagree with the changes that look set to go into law – or you think there are things missing – you can have your say on the government survey here: https://www.smartsurvey.co.uk/s/L5JPHF/
Hand-held mobile use is a huge problem, exacerbated by some people who have no fear of being caught and can’t leave their phone alone while driving. Sadly, Nomophobia really is a thing in this strange world we now live in.
Ultimately though, it’s good news for motorcyclists as it should sort out some of the less attentive people out there.