Director of Public Prosecutions v Barreto

Road Traffic Act 1988, section 41D, and regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986 do not prohibit every use of a mobile phone while driving. The offence is committed where the phone or other qualifying device is used for a call or another interactive communication function and is held at some point during that process. A smartphone is a mobile phone for these purposes. Non-communication uses, such as filming or taking photographs, fall outside regulation 110, although they may constitute careless or dangerous driving. Hands-free use and hand-held use for non-communication functions are likewise outside the regulation.

The Director of Public Prosecutions appealed by case stated from the Crown Court at Isleworth, which had quashed the respondent’s conviction for using a hand-held mobile telephone while driving. The respondent had held a smartphone to film an accident scene. The Crown Court held that regulation 110 was confined to calls and interactive communication functions. The central issue was whether filming amounted to using a hand-held mobile telephone within section 41D of the Road Traffic Act 1988 and regulation 110.

1. The appeal was dismissed. The Crown Court was correct to quash the conviction. Questions 1 and 3 were answered yes.
2. Section 41D equates a hand-held mobile telephone with a hand-held interactive communication device. Regulation 110(1)(b) concerns devices which perform an interactive communication function by transmitting and receiving data. The use of a non-communication function does not bring such a device within paragraph (1)(b).
3. The ordinary meaning of “mobile phone” includes a smartphone. However, the statutory context restricts the relevant use of a mobile phone to use of its interactive communication function.
4. Regulation 110(6)(a) is a deeming provision concerning when a phone or device is to be treated as hand-held. It applies where the device is, or must be, held at some point during a call or other interactive communication function. It does not extend the offence to every electronic function performed by a phone.
5. Accordingly, filming the accident scene did not fall within regulation 110. The same principle applies to taking photographs with an iPad or tablet, or using a hand-held digital camera or Satnav. Such conduct may nevertheless provide cogent evidence of careless or dangerous driving.
6. The court left open whether drafting, reading or recording messages forms part of an interactive communication function, since that issue did not arise for decision. Any wider alteration of the statutory scheme was a matter for Parliament.

• Crown Court at Isleworth: allowed the respondent’s appeal from conviction and quashed the conviction.
• High Court (Administrative Court): dismissed the Director of Public Prosecutions’ appeal by case stated and upheld the Crown Court’s conclusion.