On 25 March 2022, the law relating to using mobile phones whilst driving was significantly tightened.

Businesses who employ drivers (who drive as their sole role or driving is part of their job) should use this opportunity to revisit road safety policies. They, and their drivers, should also remember that, where their drivers hold vocational licences for lorries, coaches and buses (category C or D), they may face penalties over and above fixed penalties and penalty points – through Traffic Commissioner action against them, such as suspension.

The New Mobile Phone Law

The revised offence of using a hand-held device covers any device that has an interactive communication capability – even if it is not enabled. These will usually be mobile phones.

What will be meant by “using” a mobile telephone or another device that will make it unlawful? In the new regulations* there is a non-exhaustive list that includes the following:

• illuminating the screen
• checking the time
• checking notification
• unlocking the device
• making, receiving or rejecting a telephone or internet-based call
• sending, receiving or uploading oral or written content
• sending, receiving or uploading a photo or video
• utilising the camera, video, or sound recording
• drafting any text
• accessing any stored data such as documents, books, audio files, photos, videos, films, playlists, notes or messages
• accessing an app
• accessing the internet.

In effect, any usage becomes unlawful – however, “hands-free” is permissible. That usage is still controversial, with continuing concerns about any kind of driving distraction, whether hands-free or not. The Transport Research Laboratory (TRL) believes this was “another missed opportunity to consider the research evidence on distracting driving more widely”. In its article on Distracted Driving Research in 2021, it stated:

“The focus on ‘hand-held devices missed the point. Drivers’ eyes and minds must be on the road. It is not enough to only ensure that their hands are on the steering wheel. As a society, we must be braver in what we demand from drivers, from policy and from design in road safety. We must ask whether we are happy for people to be driving below their optimum performance level, and if so, how far below? In short, how safe is safe enough?”

Penalties of the new law

The offence will normally be dealt with by way of a £200 fixed penalty and six penalty points unless prosecuted or contested in the Magistrates Court.

This can have further consequences:

• a driver can ‘tot up’ in just two offences within a three-year offending period = 12 points = six-month mandatory driving disqualification
• DVLA revocation of driving licence held by new drivers (i.e. licence held for less than two years)
• possible Traffic Commissioner intervention for vocational drivers (see below).

There will remain two further offences, perhaps less well known:

• causing/permitting a person to drive a vehicle on a road when that person is using a hand-held mobile phone/another device
• supervising a provisional licence holder if the person supervising is using a mobile phone/another device.

Exemptions to the new law

The law already allows a driver to use a mobile phone in emergencies.

However, there is a new exemption: drivers can use a phone/device when driving, to make a contactless payment, but the vehicle has to be stationery and what is being bought must be provided at the same time as or after payment.

Vocational drivers

Drivers who hold category C and category D licences must be fit persons, to obtain and retain those licences. If they have lost their licences (through disqualification) and are reapplying for them, or if they commit offences whilst holding their licences, they can be subject to action by the Traffic Commissioner, who can remove or suspend their entitlements for mobile phone offences.

The approach taken to LGV/PCV licence holders will depend on previous conduct history and whether the mobile phone offence (code CU80) was committed in a commercial or non-commercial vehicle.

The Traffic Commissioner starting points for action are as follows (all will normally be with hearings):

Type of vehicle not known:

• First offence – DVLA warning letter (no hearing)
• Second offence – no previous CU80 history – three-week suspension
• Second offence – previous CU80 history – hearing – six-week suspension
• Third or more CU80 – no previous CU80 history – six-week suspension for a third offence and longer for further offences
• Third or more CU80 – previous CU80 history – 12-week suspension for a third offence and longer for further offences.

Offence in commercial vehicle:

• First CU80 – no previous history – four-week suspension
• First CU80 – previous CU80 offence in any vehicle – eight-week suspension
• Second CU80 – no previous CU80 history – 12-week suspension
• Second CU80 – previous CU80 in any vehicle – 16-week suspension
• Third or more CU80 – no previous CU80 history – 16-week suspension for third offence/longer for further offences
• Third or more CU80 – previous CU80 history – 26-week suspension for a third offence and longer for further offences.

This means it is highly likely that a vocational driver will face a suspension of their Cat C or D entitlements if they commit a CU80 offence.

The background to the new law

If a driver uses a mobile whilst driving then an offence can be committed in one of two ways:

1. the offence of using a hand-held device where driving, or
2. where their driving is sub-standard, wholly or in part due to mobile phone usage, e.g. offences such as careless or dangerous driving.

The law relating to using a device whilst driving had to change, as it had not kept pace with modern phone technology. The pre-25 March 2022 law forbade hand-held “interactive communication” when driving – in reality, this covered telephone calls, messaging or internet access. Other uses of mobile devices did not breach this specific law. Over time, phones acquired new functions: cameras, internet access etc.

The old law meant that you could use your phone to, say, film an accident – this involved no “interactive communication” and no offence was committed. This is what happened in the case of DPP v Barreto [2019] EWHC 2044 (Admin), where a driver admitted to filming a serious accident for between 10 and 15 seconds. In that case, the Court recalled a separate case (R v Eldarf) where a driver used his mobile phone to listen to music that was pre-stored, changing tracks as he drove. In both cases, the Court confirmed this did not involve external communication – so there was no offence under the law, as then drafted.

Clearly, the law was not in step with new phone technology – and hence the change in the law.

Contact our road transport solicitors today

If you require any advice with regard to road transport, fleet management and Goods and Passenger Operator Licencing, including advice concerning DVSA Investigations, correspondence with the Office of The Traffic Commissioner or Traffic Commissioner Preliminary Hearing/Public Inquiry work, then please contact us using our online enquiry form or by calling 0330 404 7949.

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*The Road Vehicles (Construction and Use) (Amendment) (No. 2) Regulations 2022.