High Court confirms loophole in mobile phone driving law

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

Postby thelawnet » 1 Aug 2019, 7:00am

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 :( .


Poor summary. There was no debate about what the phone was being used for - to film an accident; the issue here is that there is no specific law against using a camera while driving, and the phone was being used as a camera. Prosecution should have proceeded under some other basis.

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

Postby Bonefishblues » 1 Aug 2019, 8:57am

thelawnet wrote:
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 :( .


Poor summary. There was no debate about what the phone was being used for - to film an accident; the issue here is that there is no specific law against using a camera while driving, and the phone was being used as a camera. Prosecution should have proceeded under some other basis.

Not germane though, except in the narrow sense that the driver wasn't acting under the provisions of the legislation.

I agree with your second point - although that could be problematic if it was one of those cases of traffic crawling past a crash site, of course.

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661-Pete
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Re: High Court confirms loophole in mobile phone driving law

Postby 661-Pete » 1 Aug 2019, 9:31am

So let's get this straight. Would texting while driving be excluded from the offence? Because when texting, you're not "communicating interactively" - you're just composing a message locally on the phone - until you press the SEND button?

Perhaps the esteemed Mr Paterson and his fellow "Mr Loophole"-style attorneys should be made to watch this video - in which the actress portraying the driver is clearly seen to be composing a text, not sending it. Just as well they're only actors. Food for thought?
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Barks
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Re: High Court confirms loophole in mobile phone driving law

Postby Barks » 1 Aug 2019, 9:58am

‘Using’ a mobile phone in your hand clearly includes any and all of its functionality irrespective of what purpose you are pursuing. This judgement simply ignores the intent behind the legislation that typing or pressing any buttons on a phone or the screen itself is distracting the driver from what they should be doing which is driving with due care and attention. It is simply preposterous to try and argue otherwise. Quite why the original legislation did not specify all handheld electronic devices is also simply beyond me - calculators, dictaphones, e-readers, they are all equally distracting to drivers (or cyclists for that matter) and that with one hand (and we have seen numerous video clips of both hands on these devices while driving) on the device you cannot control the vehicle in an appropriate manner.

The solicitor in this case and their client are being completely disingenuous in their statement - this was a blatant attempt to ‘get off’ an offence of clear use of a device beyond the intent of the law and disappointingly has been successful. Our new Minister better address this loophole, and that is exactly what it is, as his first major test of his suitability for the job.

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

Postby AlaninWales » 1 Aug 2019, 10:49am

thelawnet wrote:
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 :( .


Poor summary. There was no debate about what the phone was being used for - to film an accident; the issue here is that there is no specific law against using a camera while driving, and the phone was being used as a camera. Prosecution should have proceeded under some other basis.

Quite, further reading of the judgement as reported in the oiriginal link makes this clear:
The High Court has agreed that using a function on a mobile phone which does not involve ‘interactive telecommunication’, is not a mobile phone offence.

However, as always, it may still be an offence of driving without due care and attention or dangerous driving, if the standard of driving falls below that expected of a careful and competent driver.

Far from being doomed, this should lead to the CPS using the correct tool for the job, rather than trying to shoehorn it into an offence designed and worded for a completely different problem. The use here was no different from someone using a video camera, which clearly would not come under mobile 'phine legislation.

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

Postby irc » 1 Aug 2019, 11:21am

The problem with using careless driving to prosecute phone users is that courts often found that holding the phone did not in itself amount to careless driving. There was an instruction from the Procurator Fiscal in Glasgow that no proceedings would be taken unless there was evidence that driving was impaired like swerving across white lines. Firstly the danger does not always show directly in the driving and secondly careless driving is a bit subjective resulting in many not guilty pkeas and trials

So the mobile phone law was a good thing. It now needs updated to cover all handheld use of electronic devices while driving.

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

Postby Bonefishblues » 1 Aug 2019, 11:35am

Barks wrote:The solicitor in this case and their client are being completely disingenuous in their statement - this was a blatant attempt to ‘get off’ an offence of clear use of a device beyond the intent of the law and disappointingly has been successful. Our new Minister better address this loophole, and that is exactly what it is, as his first major test of his suitability for the job.

That's the point though - there's no offence of contravening the intent of the law, only one of contravening the law itself. There's nothing disingenuous there, the solicitor's doing the job they are paid to do, and which we need them to do.

I think that a 30mph sign's intent is quite clear, but every day hundreds of cyclists go faster, but because they are not explicitly mentioned in the law, they can't be prosecuted for that offence :wink:

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

Postby Psamathe » 1 Aug 2019, 1:06pm

Does this new judgement "apply" retrospectively. i.e. can we now expect a lot of people appealing their penalty on the basis that their case failed to e.g. demonstrate "interactive telecommunication" use. e.g. "I was fined/penalty points on the basis of a law that actually did not apply to my use so I want my money/fine back & points removed".

I don't know enough about legal procedures to know what might now be possible (so not suggesting anything would or wouldn't happen, just wondering).

Ian

pete75
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Re: High Court confirms loophole in mobile phone driving law

Postby pete75 » 1 Aug 2019, 1:21pm

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:


I'd call it unnecessary law making. The pre existing careless and dangerous driving laws are both quite adequate to prosecute drivers using mobile phones and one should, perhaps, have been used in the case under discussion.

Time and again parliament introduces new laws as a knee jerk reaction to newspaper/ public pressure when existing legislation could deal quite adequately with the problem if properly enforced. If those laws are not being enforced very well then it's no more likely the new will be. It makes it look as if the politicians are doing something though.

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

Postby kwackers » 1 Aug 2019, 2:16pm

pete75 wrote:I'd call it unnecessary law making. The pre existing careless and dangerous driving laws are both quite adequate to prosecute drivers using mobile phones and one should, perhaps, have been used in the case under discussion.

Time and again parliament introduces new laws as a knee jerk reaction to newspaper/ public pressure when existing legislation could deal quite adequately with the problem if properly enforced. If those laws are not being enforced very well then it's no more likely the new will be. It makes it look as if the politicians are doing something though.

Sometimes people need to be led by the nose.

Yes you could prosecute phone use under careless driving but it opens the door to being contested and some folk simply won't see using their phone as something that is careless.

Explicitly banning mobile phones removes all doubt and makes it impossible to contest.

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

Postby slowster » 1 Aug 2019, 3:07pm

kwackers wrote:Yes you could prosecute phone use under careless driving but it opens the door to being contested and some folk simply won't see using their phone as something that is careless.

Explicitly banning mobile phones removes all doubt and makes it impossible to contest.

Except as this case demonstrates, by creating a specific offence for mobile phone use, the legislators have created a situation where technological advances have introduced doubt and made it possible to contest.

As I said above, making it a specific offence was probably done more to raise public awareness and make it clear that it would no longer be tolerated, having failed to clamp down on the problem in the early years when mobile phone ownership was limited. In fact it was probably relatively cheap form of publicity: instead of an expensive publicity campaign and paying for public information adverts on TV and in the press to warn drivers that they would be prosecuted for careless driving if caught using a phone, by passing a specific law instead they received a lot of free publicity for the measure from the media, which was probably also a lot more effective in getting people to stop doing it.

As it is, the law has served its usefulness and probably should be repealed to stop police and the CPS being caught out like in this case, with reliance instead on careless driving. Arguments about mobile phone use not being careless driving would not stand up in court - the Highway Code already states "You MUST NOT use a hand-held mobile phone, or similar device" and that should prevent any such defence arguments.

Attempting to come up with new legislation to address this specific case, i.e. Bonefishblue's argument that a better definition of device can be used, is probably a fool's errand. Technology is evolving so quickly that any attempt to define precisely a particular type of electronic equipment will probably soon be rendered obsolete, e.g. devices which are not hand held but worn, controlled without directly touching the device, or even surgically implanted.

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

Postby Bonefishblues » 1 Aug 2019, 3:21pm

In fact I was talking about a broader, portmanteau definition which is technology agnostic, which makes clear that if you're in control of a vehicle and have in your hand a device (definition tbc, just for the complete avoidance of doubt) then an offence is committed.

Relying on the 'resurrection' of something that demonstrably is failing to be used currently, even when merited, might to the casual observer be considered to be rather more that of which I am accused. :D

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

Postby kwackers » 1 Aug 2019, 3:27pm

slowster wrote:Except as this case demonstrates, by creating a specific offence for mobile phone use, the legislators have created a situation where technological advances have introduced doubt and made it possible to contest.

As I said above, making it a specific offence was probably done more to raise public awareness and make it clear that it would no longer be tolerated, having failed to clamp down on the problem in the early years when mobile phone ownership was limited. In fact it was probably relatively cheap form of publicity: instead of an expensive publicity campaign and paying for public information adverts on TV and in the press to warn drivers that they would be prosecuted for careless driving if caught using a phone, by passing a specific law instead they received a lot of free publicity for the measure from the media, which was probably also a lot more effective in getting people to stop doing it.

As it is, the law has served its usefulness and probably should be repealed to stop police and the CPS being caught out like in this case, with reliance instead on careless driving. Arguments about mobile phone use not being careless driving would not stand up in court - the Highway Code already states "You MUST NOT use a hand-held mobile phone, or similar device" and that should prevent any such defence arguments.

Attempting to come up with new legislation to address this specific case, i.e. Bonefishblue's argument that a better definition of device can be used, is probably a fool's errand. Technology is evolving so quickly that any attempt to define precisely a particular type of electronic equipment will probably soon be rendered obsolete, e.g. devices which are not hand held but worn, controlled without directly touching the device, or even surgically implanted.

Having an offence of using a mobile phone doesn't preclude prosecution for careless driving.
All it seems to me to have really happened is the wrong offence was tried. Once the person in question admits to using a camera then the offence should have been changed.

The basic problem with careless driving is that people simply don't see what they're doing as being careless.
You don't have to try too hard to find folk who genuinely believe they can use a phone and drive OK - and if you throw hands free into the mix most folk think they can drive pretty well despite all the evidence to the contrary.

The world is imperfect but this is easy to fix.
Just redefine phone to be any hand held device and bob is your aunt fanny.

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

Postby Bonefishblues » 1 Aug 2019, 3:32pm

kwackers wrote:
slowster wrote:Except as this case demonstrates, by creating a specific offence for mobile phone use, the legislators have created a situation where technological advances have introduced doubt and made it possible to contest.

As I said above, making it a specific offence was probably done more to raise public awareness and make it clear that it would no longer be tolerated, having failed to clamp down on the problem in the early years when mobile phone ownership was limited. In fact it was probably relatively cheap form of publicity: instead of an expensive publicity campaign and paying for public information adverts on TV and in the press to warn drivers that they would be prosecuted for careless driving if caught using a phone, by passing a specific law instead they received a lot of free publicity for the measure from the media, which was probably also a lot more effective in getting people to stop doing it.

As it is, the law has served its usefulness and probably should be repealed to stop police and the CPS being caught out like in this case, with reliance instead on careless driving. Arguments about mobile phone use not being careless driving would not stand up in court - the Highway Code already states "You MUST NOT use a hand-held mobile phone, or similar device" and that should prevent any such defence arguments.

Attempting to come up with new legislation to address this specific case, i.e. Bonefishblue's argument that a better definition of device can be used, is probably a fool's errand. Technology is evolving so quickly that any attempt to define precisely a particular type of electronic equipment will probably soon be rendered obsolete, e.g. devices which are not hand held but worn, controlled without directly touching the device, or even surgically implanted.

Having an offence of using a mobile phone doesn't preclude prosecution for careless driving.
All it seems to me to have really happened is the wrong offence was tried. Once the person in question admits to using a camera then the offence should have been changed.

The basic problem with careless driving is that people simply don't see what they're doing as being careless.
You don't have to try too hard to find folk who genuinely believe they can use a phone and drive OK - and if you throw hands free into the mix most folk think they can drive pretty well despite all the evidence to the contrary.

The world is imperfect but this is easy to fix.
Just redefine phone to be any hand held device and bob is your aunt fanny.

Saying this I have been :D

Clean, easy, can be made Strict Liability if desired, as opposed to having to establish that one's driving was impaired as a direct result of the use of such device. Can also be automated rather more easily.

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

Postby kwackers » 1 Aug 2019, 3:47pm

Bonefishblues wrote:Saying this I have been :D

You are Aunt Fanny and I claim my five pounds???