Published on: 8th October 2019
In July 2019 the High Court delivered the judgment in the case of Director of Public Prosecution and Ramsey Barreto.
The case was an appeal by way of case stated by the Crown Prosecution Service against the decision of the Crown Court sitting at Isleworth to quash the respondent’s conviction for driving a motor vehicle whilst using a hand-held mobile telephone, contrary to Section 41D of the Road Traffic Act 1988 and Regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986.
The respondent was observed by a police officer holding his mobile phone as he drove past a crash scene recording the scene using the camera function on his mobile phone.
The officer took issue with this and he was subsequently prosecuted in the magistrates’ court. He was convicted in the first instance but was successful in his appeal at the Crown Court.
In the Crown court, attention was drawn to the case of R v Nader Eldarf. In this case, the alleged misconduct involving the use of a mobile phone to listen to music, stored in the motorist’s mobile phone, whilst driving.
In that case the court was required to consider whether the use of a thumb to change music tracks on the phone constituted ‘using’ a mobile phone within the meaning of Regulation 110 and Section 41D.
The court concluded in this case that this function did not amount to ‘using’ a mobile phone (for the purposes of this offence) as it did not involve any external communication.
In essence, in Barretothe court was asked again to look at the concept of external communication and interactive communication function.
In considering this concept, the court referred to the (non-exhaustive) list of interactive communication functions set out in paragraph (4) of the Regulations and most importantly concluded that the act of using a mobile phone to record a crash scene did not come within Regulation 110. Accordingly, the original conviction from the magistrates’ court was quashed.
The court clearly had to consider the Regulations very carefully when deciding which argument to prefer. It is unclear whetherNader Eldar was brought to the attention of the justices’ at the original trial but it is difficult to see how if it had been why the court wouldn’t have simply followed the same rationale and acquitted?
Consider further the slightly different scenario whereby Mr Barreto was using his mobile to record the crash scene but crucially to use a platform such as Facebook Live or Snapchat to livestream it to his ‘friends’. It is likely that he would fall foul of the interactive communication function requirement and would likely not have a defence to rely upon.
Finally, the High Court did make it quite clear that the decision in this case did not ‘give the green light’ for people to make films as they drive. Certainly, no-one should forget that the alternative offences of Careless and Dangerous Driving co-exist with many other driving offences and that any activity that has the potential to cause a motorist’s driving to fall below the standard of a competent and careful driver should be avoided.
For any advice on these matters or driving offences generally, please contact Partner Jonathan Stirland at: firstname.lastname@example.org or on tel: (0191) 232 0283
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