Andrew Olins, R (on the application of) v Lavender Hill Magistrates' Court

For the purposes of regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986, a driver uses a mobile telephone where the telephone is being used for a voice call through the vehicle’s Bluetooth or hands-free system. It is sufficient that the telephone is held while it is being used. The Regulations do not require the holding to facilitate or enable the use, or require a separate active interaction with the device.

A magistrates’ court may refuse to state a case where the application is futile, misconceived, hopeless or academic. That conclusion must be adequately reasoned. Where the refusal concerns special reasons for penalty purposes and the reasoning leaves uncertainty about the applicable conditions, the application is not frivolous. The matter should be remitted for a reasoned redetermination.

The claimant was convicted by Lavender Hill Magistrates’ Court of using a hand-held mobile telephone while driving, contrary to regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986 and section 41D(b) of the Road Traffic Act 1988. He had been conducting a telephone call through the vehicle’s Bluetooth system and had instinctively held the telephone when it slipped from the passenger seat.

The magistrates refused to state a case, describing the proposed questions as frivolous. They also refused to find special reasons for not imposing the usual endorsement and penalty, although they accepted that the claimant’s conduct was instinctive and provided mitigation. The judicial review concerned whether the refusals were lawful and what relief should follow.

1. Conviction. The application was dismissed insofar as it challenged the refusal to state a case about the conviction. The proper question was unitary: whether the claimant was using a mobile phone for a voice call while holding it. A mobile telephone remains the device being used when the call is transmitted through Bluetooth or the vehicle’s audio system. Regulation 110(6)(a) requires only that the phone be held at some point while being used. It does not require the holding to facilitate the use or require a connection between the purpose of holding and the way in which the phone is used.
2. The non-exhaustive examples in regulation 110(6)(c), including making or receiving a call, do not impose a requirement of a separate active step during the call. The claimant was using and holding the phone simultaneously, so the essential elements of the offence were established.
3. Frivolous application. Applying R v North West Suffolk Mildenhall Magistrates Court ex parte Forest Heath District Council, an application may be treated as frivolous where it is futile, misconceived, hopeless or academic. The magistrates were entitled to reach that conclusion regarding the conviction because their reasons enabled the High Court to determine that requiring a stated case would be futile.
4. Special reasons. The claim succeeded regarding the refusal to state a case on special reasons. The four conditions in R v Wickens, following Whittall v Kirby, required consideration of whether the circumstance was mitigating or extenuating, did not amount to a defence, was directly connected with the offence, and was a matter properly to be considered in sentencing. The magistrates expressly found mitigation and no defence, but did not explain their conclusions on direct connection or proper consideration in punishment. Their reasons also created uncertainty about the nature of the mitigation and were potentially inconsistent with the fourth condition.
5. The matter was remitted to a differently constituted bench, preferably a District Judge (Magistrates’ Courts), to determine each of the four conditions with reasons. Only if special reasons were found would the court exercise its discretion regarding penalty.

This was a first-instance judicial review in the Administrative Court. The magistrates’ convictions and refusals to state a case were the decisions challenged.