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news
‘Look – No hands!’ mobile phone pick-up truck driver can’t be prosecuted, say police (+ video)
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.
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29 comments
The law was poorly drafted at the time it was made, and drafted in such a way that assumed phones would only be used as communication devices (rather than leaving the intended use open, or defining its use in some other way).
I do not buy the "use your other enforcement powers" line AT ALL. The mobile phone use offence was brought in precisely because those powers were unwieldy and wholely unsuited to policing this aspect of driver behaviour.
The scandal is that the Home Office has known about the problem for at least three years, and chose initially to do nothing and hope the lawyers were wrong, and then to do nothing when the Court of Appeal said the lawyers were right. I suspect that the Home Secretary either doesn't understand the problem, or doesn't care. Probably both TBH.
Not ding something to fix it since the Court of Appeal decision is staggeringly stupid. Give me a couple of hours and a couple of thousand quid and I'd have the offence properly drafted by the end of next week. Then, getting an amendment through Parliament - one which would be to give the law its original intent - would take a month or two at the most - IF the political will was there. (And I do not buy the "we're too busy with Brexit" line - that's done now. Nor the "we're too busy with the pandemic". If the Home Office can push through a Bill to give the Police sweeping new powers to protect a statue, they could have fixed this easily)
The only way they're going to take notice is if a family member of a Tory MP is killed by a driver using their phone - one who can legitimately use the Barretto defence. Of course, we're in such a risk-averse time when it comes to policing a especially prosecutions that the Police or CPS will assume Barretto applies even without asking the driver.
And so much for the Appeal Court Judge saying that it shouldn't be "open season" to use the phone at the wheel; the almost total lack of enforcement shows that it darned well is.
Ive stopped submitting such recordings to WMP, and have even stopped shouting at the drivers. I am however rapidly working up to the point where I will start smashing wing mirrors myself. The driver won't get the 6 points, but the eventual Bill to them will be about the same.
I'm left wondering if there is anything in the new police bill currently in parliament that applies to this, or is it just about preventing effective protests against an unjust, immoral government?
nope, the consultation on the new mobile phone law only finished in January the responses from which should be getting published around now, its expected the bill to introduce the law will be presented to parliament this year, but its not part of the Police, Crime, Courts and Sentencing Bill
Very little point in submitting video evidence to Herts police, they don't want it, don't want to use it and will come up with any excuss not to use your evidence even when it proves the offence.
They even told me once they could not use my video evidence because it was not obtained according to PACE, they were partly correct since I am not required to obtain it in accordance with PACE, but I had followed the best practice requirements (I unlike them apparently, have had training in PACE).
BUT if they need video evidence of a crime they started to investigate they will accept it without issue from anyone however captured; strangly I'm of the view it is either acceptable or not if I record it.
The main point in persisting with reporting, despite the appaling responses, is to prove that there is a problem - both on the roads AND in the way that the reports are dealt with.
Sadly, if we all give up reporting (to any Force) then that will just be be evidence that there is no problem!
Even the issue of quality of evidence problem is a self fulfilling prophesy - if they are allowed to silently black-hole 'poor' evidence then the public never has the chance to learn how to make it any better!
Maybe the UCI could sanction him. He seems to be doing that steering with the forearms thing instead of keeping both hands on the steering device.
If you look at the angle of the shadows it's obvious the sun was in the driver's eyes, so he's clearly off the hook for any KSIs he causes
This sort of bad driving just makes a wee part of me want to default to the same lowest common denominator and drive like a tit as well. Flash through on amber/red lights, speed, eat a banana with both hands, steer with my knees and all manner of other stupid things. Why do any of us bother to drive properly? Why did I bother with the IAM test? [only reason for me to drive carefully is because I share the road with cyclists, horses and motorbikers - the rest can all b..$$.& off]
Parish councillor on a zoom call perhaps? Maybe having an animated debate about pop-up cycle lanes?
I'm all for tighening up enforcement, but that seems a little extreme!
I just want to know what protecting entails. Our maybe I don't....
Well it would be pretty unpleasant for the offender, but it would probably be an effective deterrent to others.
I'm going to assume this is sarcasm.
You missed the typo.
Cases like this are difficult to understand; if there is clear video of a driver breaking the law, why was there no prosecution? There doesn't appear to be any reasonable defence, the driver clearly endangered other road users and you can guarantee that they had done it before and would do it again. Sending them a letter might make them change their behaviour, but probably not for long, and they would pretty soon go back to their dangerous and illegal use of the phone, putting the public at risk, and protecting the public is what the police does isn't it.
I find this hard to understand. In similar circumstances I have prosecuted people for failing to be in proper control of their vehicle.
Whilst this is a lesser offence to use handheld mobile phone it is still endorsable and carries a fine.
I would suggest asking to appeal the decision and request to speak to a supervisor.
The burden of proof should be beyond a reasonable doubt as to whether the driver was in control of a vehicle. Both hands off the wheel? Should be a slam dunk.
tweet me on @sheffnw_npt if you think I'm wrong though
I thought advice had been issued to police forces following that loophole case that whilst the loophole was there, they could still charge for other offences, like driving without due care instead.
its weird because you read Norfolk/Suffolk road police teams have happily been stopping truck drivers/delivery drivers & charging them for using mobile phones when having video calls or watching the tv recently, but then you read Jeremy Vines twitter thread and the Met police seem to say but its not that easy charging for mobile phone use, unless you do it in the form cyclingMikey does I guess.
so is that what they are meant to be saying here, its not that theres no offence because of a loophole, but the video in this case isnt over the threshold to enable a prosecution for mobile phone use because you cant see what the driver is holding clearly enough, though certainly the police dont need the mobile phone to prove if there was a call in progress, and they could still pursue driving without due care, covid backlogs not withstanding.
I did ask Herts Police Digital Evidence Team (DET) if it would have made a difference if he was holding a banana instead of a mobile phone and the answer was "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"; so they don't seem to think that not holding on to the steering-wheel per-se is a slam-dunk even if my video of he event was "of a good quality".
Perhaps you can explain how is it that different Police Forces can come to such radically different conclusions ?
Appealing Herts DET decisions seem to be a losing proposition, the one I already have in progress seems to consists of Professional Standards Dept (PSD) handing the problem to DET to mark their own homework. If that comes back with a silly answer then you have to appeal to OPCC Review - which is a toothless farce as they are at pains to point out that "cannot require or impose a different outcome" regardless of whether the conclusion from DET (masquerading as PSD) is "fair and reasonable" or not.
Professional Standards Dept (PSD) handing the problem to DET to mark their own homework. If that comes back with a silly answer then you have to appeal to OPCC Review
Agreed! In Lancashire at least, the PSD response just restates what the original officer says. Then the PCC just repeats that- I am awaiting a Grade A proven offence-no action complaint to see if they all repeat the usual sequence, when I will create s much trouble as I can.
I saw a phone use case like the one described here, with both the driver's arms through the wheel and texting on a phone. Unfortunately, I didn't have the camera on. Lancashire also spends a lot of time thinking up reasons why they can't do anything about blatant handheld phone use, just like Hertfordshire.
The issue with police complaints is that to complain you have to speak to the police.
Ultimately each force wil have a decision maker who is responsible for deciding if the threshold is met for prosecution.
That decision maker will have different levels of experience and ability. I'm a fairly expensive resource but I do prosecute and also provide charging decisions for my three teams. Other forces sometimes have employed civilians who do not have any policing experience to deal with these offences.
That's why I'd recommend speaking to a sergeant or Inspector to ask about what offence they were looking at. Like I said I would not go for a use mobile phone offence because you have to prove the device was a handheld device with communitations functions and also that it was being used as such at the tIme. I remember Jimmy Carr got away with saying he was using his phone as a dictaphone to record jokes or maybe it was to compose a note to his tax accountant? I forget.
There are more offences though and I would suggest that the standard of driving would arguable fall below that expected of a careful or competent driver (s3 RTA1988) or that they were not in proper control - proving the mobile use would be icing on the cake but it's not likely in this case.
feel free to write to the police if you'd prefer but I prefer to explain things over the phone as email lacks tone of voice and other non verbals that make for a decent two way conversation. Back it up with an email if you want to.
The way I look at it is, if I saw this in a Panda with my own two eyes would I issue a ticket?
Definitely.
Incredibly nonsensical differentiation; in Australia, just touching a mobile phone while in charge of a vehicle, even a bicycle, will get you nicked.
I don't think it was "differentiation" of any sort. At the time the law was created all you could do with a phone was, well, phone. And text. So that was what the law proscribed.
The Australian law is just as backward really, since touch is only half the problem at best. Why the focus on physical contact, when mental distraction is every bit as lethal, if not more so?
I would suggest asking to appeal the decision and request to speak to a supervisor.
From The Horse's Mouth! However, my advice is never to speak to anyone in the police. Always communicate in writing.
Requesting to speak to a supervisor might not be that easy.
Back in January I was involved in a (non-cycling related) incident. I wasn't happy with the way things were being dealt with, so rang the force concerned on 101. After 14 minutes of being on hold I got through to a call handler. I asked to be put through to the duty inspector for the area in question and explained why. I was told that my request would have to be in writing. So I sent off a brief email. About 15 minutes later I received a phone call from a PC in the Control Room who explained that it was an unusual request (really?) and may be more appropriate for a sergeant to deal with. After talking to them for a further five minutes I realised that they weren't going to put me through to a sergeant, but were going to deal with it themselves. By deal with it I mean kick the can down the road for the investigating officer to sort out. I felt completely helpless.
And yes, that was January and the can is still being kicked down the road.
He was in all likelihood in complete control of his vehicle, holding his beer-belly against the lower edge of the wheel affording him precise and accurate steering input by rocking slightly from side to side.
Posted in error
So true.. any evidence of distracted driving should have the driver dealt with to the full extent of the law; it's extremely dangerous. A truck driver ran up the back of stopped traffic because he was watching video on his phone.
Here's video of havoc caused by a truck crashing into slower traffic;
https://www.youtube.com/watch?v=xyfFdFjBvxA&ab_channel=ABC7
Whilst I agree with your comments, I respectfully disagree with sharing any video link which led to a fatality,.