A road.cc reader who sent police footage of a motorist driving a van with both hands off the steering wheel and using a mobile phone was shocked to be told that the force was unable to refer the case for prosecution due to a 2019 High Court decision. That case provides a clear example of how the law at times fails to keep pace with technology, resulting in a loophole that is yet to be closed, although there are plans to so. The charity Cycling UK says that in this instance, police could have prosecuted under other legislation.
“I recently reported a pick-up truck driver to Hertfordshire Police for driving with both hands off the steering wheel while they used a mobile phone,” road.cc reader Moray told us. “The pick-up was coming towards me so one small mistake while the driver is distracted and not in control of the vehicle and I'm a KSI statistic.”
Police told him, however, that they would be unable to refer the incident for prosecution for the use of a mobile phone while driving because of the DPP v Barreto High Court ruling in 2019.
In that case, Barreto was appealing a conviction (previously upheld on an earlier appeal from the Magistrates' Court to the Crown Court) for driving while using a hand-held mobile phone, after a police officer saw him filming a crash scene as he drove past it.
In essence, the High Court held that the legislation did not prohibit all use of a hand-held mobile phone while driving, but only phone calls and other types of “interactive communication,” and did not extend to using it to record video, as in this case.
However, Lady Justice Thirwell, while allowing the appeal, made it clear that the decision should not be interpreted as giving carte blanche to drivers to use their phones in that way, emphasising that they could still be prosecuted for careless or dangerous driving.
Moray said that police told him they did not have authorisation to check the motorist’s mobile phone record to find out whether it was being used for a voice call or other interactive communication (presumably because there had been no arrest, when phones are routinely seized and checked, although a court order may be required to unlock the device if it is protected by a PIN or password, or fingerprint or face recognition).
When he asked them why driving without having hands on the steering wheel did not constitute careless driving in its own right, he was told: “We must be realistic with what we can prove in a court of law and unfortunately in this case we cannot prove beyond reasonable doubt any offences", although they added that video he submitted was "of a good quality".
Police did send the driver a warning letter and “advised them that should future incidents occur this will be taken into account when dealing with them.”
But Moray, who has written to his MP on the issue, said he had received “No answer to the question about why future incidents would be any different; perhaps the public has to wait until it involves a KSI … ?”
Duncan Dollimore, head of campaigns at Cycling UK, told road.cc that despite the decision in Barreto, other courses of action were open to the police in such circumstances.
“It’s an offence to drive ‘whilst in a position which does not give proper control’, and it’s difficult to see how you have proper control without holding the steering wheel,” he pointed out.
“The police can therefore prosecute someone for this offence if they’re driving whilst using a mobile phone for purposes other than making or receiving calls, such as watching a video of filming.”
The issue, he said, had become “particularly important” following Barreto, since “essentially, legislation drafted to deal with the problem hadn’t kept pace with technology and the transition to smart phones.
“As a consequence of the Barreto judgement the government consulted and decided to change the law to close this loophole, allowing drivers to be prosecuted for using their mobile phones whilst driving where the phone was used to take pictures, play a game, or for purposes other than an interactive communication.
“The proposed changes are due to come into effect soon, however pending their introduction there’s nothing to stop the police prosecting a driver for not being in proper control if they’re using their mobile phone for other purposes,” he added, “particularly if they haven’t got either hand on the steering wheel!”
Simon joined road.cc as news editor in 2009 and is now the site’s community editor, acting as a link between the team producing the content and our readers. A law and languages graduate, published translator and former retail analyst, he has reported on issues as diverse as cycling-related court cases, anti-doping investigations, the latest developments in the bike industry and the sport’s biggest races. Now back in London full-time after 15 years living in Oxford and Cambridge, he loves cycling along the Thames but misses having his former riding buddy, Elodie the miniature schnauzer, in the basket in front of him.