High Court confirms loophole in mobile phone driving law

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gaz
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High Court confirms loophole in mobile phone driving law

Postby gaz » 31 Jul 2019, 8:21pm

https://www.pattersonlaw.co.uk/high-cou ... one-usage/
The conclusion is that the offence is not committed unless it is proved beyond reasonable doubt (by the Prosecution) that the phone was being used for an ‘interactive telecommunication function’ at the time of the alleged offence.

We're all doomed :( .
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Mike Sales
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Re: High Court confirms loophole in mobile phone driving law

Postby Mike Sales » 31 Jul 2019, 8:24pm

gaz wrote:https://www.pattersonlaw.co.uk/high-court-clarifies-law-on-mobile-phone-usage/
The conclusion is that the offence is not committed unless it is proved beyond reasonable doubt (by the Prosecution) that the phone was being used for an ‘interactive telecommunication function’ at the time of the alleged offence.

We're all doomed :( .


Is that because the law was carelessly drafted?

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Re: High Court confirms loophole in mobile phone driving law

Postby Bonefishblues » 31 Jul 2019, 8:38pm

The commentary is particularly clear, I thought?

Neither loophole nor poor drafting, but rubbish lawmaking (see also facial recognition debates we've been having).

I suspect we're seeing some downsides of our Representatives' typical demographic here.

Mike Sales
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Re: High Court confirms loophole in mobile phone driving law

Postby Mike Sales » 31 Jul 2019, 8:42pm

Bonefishblues wrote:The commentary is particularly clear, I thought?

Neither loophole nor poor drafting, but rubbish lawmaking (see also facial recognition debates we've been having).

I suspect we're seeing some downsides of our Representatives' typical demographic here.


I'd call that poor drafting, but I see your distinction.

slowster
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Re: High Court confirms loophole in mobile phone driving law

Postby slowster » 31 Jul 2019, 9:03pm

The amendment to the Road Traffic Act which prohibited the use of mobile phones while driving was made in 2006. At that time smartphones did not exist. Given that smartphones can now be used for so many functions other than speech and message telecommunication, e.g. satellite navigation, it makes some sense that the law would be interpreted in this way. The holding while driving of a smartphone to take video or photographs or perform other functions should presumably be prosecuted instead as a careless driving offence, which I think carries a similar penalty.

It was a High Court judgement, which could be overturned if the CPS decided it was worth taking to the Court of Appeal. Unless and until that happens the judgement is not a precedent which binds other High Court judges, although it would be considered persuasive.
Last edited by slowster on 31 Jul 2019, 9:58pm, edited 1 time in total.

reohn2
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Re: High Court confirms loophole in mobile phone driving law

Postby reohn2 » 31 Jul 2019, 9:05pm

Mike Sales wrote:
Bonefishblues wrote:The commentary is particularly clear, I thought?

Neither loophole nor poor drafting, but rubbish lawmaking (see also facial recognition debates we've been having).

I suspect we're seeing some downsides of our Representatives' typical demographic here.


I'd call that poor drafting, but I see your distinction.

I'd call it ***** lawmaking :twisted:
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Re: High Court confirms loophole in mobile phone driving law

Postby Bonefishblues » 31 Jul 2019, 9:28pm

Mike Sales wrote:
Bonefishblues wrote:The commentary is particularly clear, I thought?

Neither loophole nor poor drafting, but rubbish lawmaking (see also facial recognition debates we've been having).

I suspect we're seeing some downsides of our Representatives' typical demographic here.


I'd call that poor drafting, but I see your distinction.

No, the law in terms of its provisions has done exactly what was asked of it*, it's just the dimwits who, in terms, asked for the law to do exactly that** who made a horlicks of it. The Parliamentary Lawyers can't come back and go - "How about we do x, because sensible, you dimwits?"

*That's drafting
**That's the scope of the legislation itself

Likes a bit of semantics, me - because important :D

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Re: High Court confirms loophole in mobile phone driving law

Postby Bonefishblues » 31 Jul 2019, 9:28pm

reohn2 wrote:
Mike Sales wrote:
Bonefishblues wrote:The commentary is particularly clear, I thought?

Neither loophole nor poor drafting, but rubbish lawmaking (see also facial recognition debates we've been having).

I suspect we're seeing some downsides of our Representatives' typical demographic here.


I'd call that poor drafting, but I see your distinction.

I'd call it ***** lawmaking :twisted:

Eloquent you are :D

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Re: High Court confirms loophole in mobile phone driving law

Postby Bonefishblues » 31 Jul 2019, 9:33pm

slowster wrote:The amendmant to the Road Traffic Act which prohibited the use of mobile phones while driving was made in 2006. At that time smartphones did not exist. Given that smartphones can now be used for so many functions other than speech and message telecommunication, e.g. satellite navigation, it makes some sense that the law would be interpreted in this way. The holding while driving of a smartphone to take video or photographs or perform other functions should presumably be prosecuted instead as a careless driving offence, which I think carries a similar penalty.

It was a High Court judgement, which could be overturned if the CPS decided it was worth taking to the Court of Appeal. Unless and until that happens the judgement is not a precedent which binds other High Court judges, although it would be considered persuasive.

Not quite correct. I worked for Vodafone 1998-2005 and camera phones and phones with internet access were certainly available in 2003 (I had a Sharp, the first of its kind, IIRC), so whilst one might not have been able to predict quite the extent of the functionality, it was pretty obvious to us that this was going to be the go-to personal device in the pretty immediate future.
It wasn't hard to make it all-enveloping, even at that stage.

slowster
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Re: High Court confirms loophole in mobile phone driving law

Postby slowster » 31 Jul 2019, 9:57pm

Bonefishblues wrote:Not quite correct. I worked for Vodafone 1998-2005 and camera phones and phones with internet access were certainly available in 2003 (I had a Sharp, the first of its kind, IIRC), so whilst one might not have been able to predict quite the extent of the functionality, it was pretty obvious to us that this was going to be the go-to personal device in the pretty immediate future.
It wasn't hard to make it all-enveloping, even at that stage.

Legislation is generally necessarily reactive. Trying to anticipate future technological developments and framing laws before the nature of any problems or misuse of the technology became fully apparent would probably be a waste of resources, and often the legislation would prove to be wrong, inadequate or unnecessary, and would have to be repealed and replaced anyway.

IMO the specific legislation banning the use of mobile phones while driving was never really necessary - it was done because police and governments had failed to use the existing offence of careless driving to come down hard on the early owners of mobile phones who used their phone while driving. If they had done that, they would have probably nipped much of the problem in the bud. Instead, the failure to actively enforce the existing offence of careless driving for mobile use meant that as mobile phone ownership rapidly increased, the problem became widespread. Consequently specific legislation was passed to draw a line in the sand and make it clear that it was an offence and that police were expected to charge people using phones while driving.

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gaz
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Re: High Court confirms loophole in mobile phone driving law

Postby gaz » 31 Jul 2019, 10:00pm

I accept that this is a case of technology out-pacing legislation.

Not to worry though because the legislators will soon be introducing some new cycling offences that will bring an end the carnage on our streets :roll: .
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Bonefishblues
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Re: High Court confirms loophole in mobile phone driving law

Postby Bonefishblues » 31 Jul 2019, 10:14pm

slowster wrote:
Bonefishblues wrote:Not quite correct. I worked for Vodafone 1998-2005 and camera phones and phones with internet access were certainly available in 2003 (I had a Sharp, the first of its kind, IIRC), so whilst one might not have been able to predict quite the extent of the functionality, it was pretty obvious to us that this was going to be the go-to personal device in the pretty immediate future.
It wasn't hard to make it all-enveloping, even at that stage.

Legislation is generally necessarily reactive. Trying to anticipate future technological developments and framing laws before the nature of any problems or misuse of the technology became fully apparent would probably be a waste of resources, and often the legislation would prove to be wrong, inadequate or unnecessary, and would have to be repealed and replaced anyway.

IMO the specific legislation banning the use of mobile phones while driving was never really necessary - it was done because police and governments had failed to use the existing offence of careless driving to come down hard on the early owners of mobile phones who used their phone while driving. If they had done that, they would have probably nipped much of the problem in the bud. Instead, the failure to actively enforce the existing offence of careless driving for mobile use meant that as mobile phone ownership rapidly increased, the problem became widespread. Consequently specific legislation was passed to draw a line in the sand and make it clear that it was an offence and that police were expected to charge people using phones while driving.

"It shall be an offence to have in the drivers hand whilst in control of a motor vehicle a device..."

Not so hard.

The functionality of the modern smartphone was there, albeit not fully mature in 2006. The essence of the issue was and is the distraction of the driver because their attention is diverted by something in their hand, irrespective of whether they were chatting, SMSing (as it was then called), or some future eye-twinkling functionality.

We were completely aware of it, and it was a disciplinary offence for anyone to hand-hold a mobile from as early as I can remember whilst in the company, so c8 years prior to the passage of legislation.

The point I was making is that oftentimes Parliament seems to be caught off-guard to an unacceptable degree (accepting your premise that laws are essentially reactive) because they are out of step with the pace of change, perhaps increasingly so - although perhaps time will tell on that latter point.

slowster
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Re: High Court confirms loophole in mobile phone driving law

Postby slowster » 31 Jul 2019, 10:53pm

Bonefishblues wrote:"It shall be an offence to have in the drivers hand whilst in control of a motor vehicle a device..."

Not so hard.

I suspect rather a lot harder than you think. 'Device' is so imprecise and vague that it would probably never be acceptable to legislators and would be thrown out by the courts. Almost anything could be considered a device, and many items would not be considered something which should be prohibited by law e.g. sunglasses, a nasal spray, a credit card for paying tolls etc.

The offence of careless driving avoids falling into the trap of being either overly precise or too vague to be meaningful, and it is also largely futureproof against technological advances, since it is based on the standard of a competent driver (of the day - so it might be considered that a competent driver would use a smartphone for satnav purposes but not for mobile comms, even though satnavs might have seemed like science fiction when the Act was passed).

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Re: High Court confirms loophole in mobile phone driving law

Postby Bonefishblues » 31 Jul 2019, 11:01pm

slowster wrote:
Bonefishblues wrote:"It shall be an offence to have in the drivers hand whilst in control of a motor vehicle a device..."

Not so hard.

I suspect rather a lot harder than you think. 'Device' is so imprecise and vague that it would probably never be acceptable to legislators and would be thrown out by the courts. Almost anything could be considered a device, and many items would not be considered something which should be prohibited by law e.g. sunglasses, a nasal spray, a credit card for paying tolls etc.

The offence of careless driving avoids falling into the trap of being either overly precise or too vague to be meaningful, and it is also largely futureproof against technological advances, since it is based on the standard of a competent driver (of the day - so it might be considered that a competent driver would use a smartphone for satnav purposes but not for mobile comms, even though satnavs might have seemed like science fiction when the Act was passed).

My addition of ... after the phrase to denote a continuation would rather obviously contain the definition of said handheld device. I have some modest familiarity with issues of definition and interpretation.

Satnavs were very much in existence when the act was passed, and had been for a couple of years BTW.

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Re: High Court confirms loophole in mobile phone driving law

Postby Cunobelin » 1 Aug 2019, 6:13am

It does need clarification, and there are "backup laws" to deal with the others.

The problem here is what it allows.

SatNav is different from watching a video whilst driving., but both are "allowed" under this interpretation