Motorist who filmed crash scene on phone wins appeal against conviction for driving while using mobile

Ramsey Barreto was found guilty of a contravention of section 41D of the Road Traffic Act 1998 and regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986 after he was caught using the camera on his mobile phone to film the scene of a crash as he drove past it.

However, he successfully challenged his conviction in the Crown Court after arguing he was not “using” the device for “external communication”.

The Director of Public Prosecutions then appealed against the decision on the basis that the law prohibited all use of a mobile phone while driving, but the High Court in London ruled that the Crown Court was “right to quash the conviction”.

Road traffic accident

The court heard that in July 2018 the respondent was convicted after trial in the Magistrates’ Court of driving his VW Caravelle while using a mobile phone, having held his handset up to the driver’s window for between 10 and 15 seconds to film the scene of a serious crash in Ruislip, west London in August 2017.

He appealed against his conviction, relying on another Crown Court decision in which a motorist found guilty of an offence under the same provisions who had used his thumb to change the music track on his mobile phone, successfully challenged his conviction.

The Crown Court sitting at Isleworth adopted the same reasoning in this case and quashed the conviction, having concluded that using a mobile phone to take a photograph or film did not amount to “using” a hand-held mobile telephone or device for the purposes of section 41D of the 1998 Act and regulation 110 of the 1986 Regulations.

The DPP appealed to the High Court, arguing that the Crown Court’s conclusion was “wrong in law”.

The questions for the court were: is using a hand-held mobile telephone or device for the purposes of Section 41D of the Act and Regulation 110 of the regulations restricted only to the use of an interactive communication function such as those set out in Regulation 110(6)(c) of the regulations?; and was the Crown Court correct to conclude that the respondent’s conduct did not amount to “using” a hand-held mobile telephone or device for the purposes of section 41D of the Act and regulation 110 of the Regulations?”

‘Correct decision’

On behalf of the respondent it was submitted that on a true construction of regulation 110, using a mobile telephone while driving is prohibited “only” if the device is held at some point “during the course of making or receiving a call or performing any other interactive communication function”.

It was argued that the regulation was a prohibition on using mobile phones when performing their primary function of telephoning – a ban on using a device for communication, and not merely a “blanket ban” on any use of a mobile telephone.  

The effect of taking together regulation 110(1) and the definition of hand-held device in regulation 110(4), it was submitted, that no person shall drive a motor vehicle on a road if he is using a hand-held mobile telephone or hand-held device which is performing an interactive communication function by transmitting and receiving data.

It followed that since the respondent was using a “different type of function”, namely filming, the Crown Court was “correct” to quash the conviction as the conduct did not fall within the scope of the offence charged.

‘Incoherent construction’

But on behalf of the appellant it was submitted that, properly construed, the regulation prohibits “any use of a hand-held mobile telephone while driving”.

It was “not necessary” for the prosecution to prove that the telephone was being used to make or receive a call or perform any other interactive communication function at the material time.

The Crown Court’s approach led to an “incoherent construction” of the term “hand-held”, which would mean that a hand-held mobile telephone, held in a driver’s hand while he uses it, is not to be considered hand-held unless it is receiving or transmitting data.

Finally, it was submitted that if the interpretation of the regulation reached by the Crown Court was correct it would mean that drafting emails (with the phone in the hand while driving) with the phone in flight safe mode (i.e. not immediately communicating) would not be a breach of the regulation because drafting an email would not be engaging in an interactive communication function.

‘Crown Court was right’

However, Lady Justice Thirlwall and Mr Justice Goss ruled that the Crown Court was correct to quash the conviction.

In a written judgment, Lady Justice Thirwall said: “It would have been much better to have drafted legislation which was less cumbersome but its effect is clear.

“The legislation does not prohibit all use of a mobile phone held while driving. It prohibits driving while using a mobile phone or other device for calls and other interactive communication (and holding it at some stage during that process).”

The judges rejected the appellant’s submission that this interpretation was incoherent.

“On the contrary,” Lady Justice Thirlwall continued, “it coincides with and reflects the purpose of the legislation.

“It follows that the activity of the respondent did not come within regulation 110 and the Crown Court was right to quash the conviction.

However, the court warned that their conclusion should not be interpreted as giving a “green light” for drivers to use their phones for other purposes. 

She added: “As I have already said, driving while filming events or taking photographs whether with a separate camera or with the camera on a phone, may be cogent evidence of careless driving, and possibly of dangerous driving.

“It is criminal conduct which may be prosecuted and on conviction may result in the imposition of penalties significantly more serious than those which flow from breach of the regulations. The same applies to any other use of the phone while driving.”