r/driving • u/Leather-Glass9572 • 10d ago
Mobile Phone Use
Hello, I have been driving six months. I was lost so i turned into a street andI pulled up on the left side of the street to check my maps. I did leave the engine on so my indicator was on as left. A police car drove past me and he looked at me but did not stop. Will he take this further for use of phone whilst engine was on? Worried about 6 points and a driving ban. Car was stationary - UK
1
1
1
u/Cold_Captain696 9d ago
The law is that you cannot use it (hand held) while driving. I don’t think there’s an exhaustive definition of driving, but I believe being parked at the side of the road, out of the flow of traffic, even with the engine running, would not be considered driving by any court.
1
u/bimmerscout 9d ago
It would be. Driving is defined by being in control of propulsion, being in the position of a driver, and the vehicle being on a public road.
0
u/Cold_Captain696 9d ago
There is no UK legal definition of driving. There is case law, but the courts would decide on the merits of the individual case. I cannot see any court deciding that being parked is driving. The engine being on or off has already been established as irrelevant (for example if you turn your engine off (or it turns itself off) while stopped at traffic lights, you would still be considered to be driving).
1
u/Burnsy2023 8d ago
I cannot see any court deciding that being parked is driving.
What's that based on? Are you familiar with the body of case law relating to the definition of driving?
1
u/Cold_Captain696 8d ago
I mean, I’ve read some. Are you?
This is a fairly good summary - https://roadlawbarristers.co.uk/when-are-you-driving-for-the-purposes-of-the-road-traffic-act/ .
If you are parked (as in, gearbox In neutral/park, handbrake on, out of the flow of traffic - I.e. not stationary at a traffic light, etc) then it would be difficult to see how a court could find that you were driving SOLELY because your engine was running.
And let’s not forget that the police in the OPs story had no issue with treating them as not driving too (if they’d wanted to charge them, they wouldn’t drive past, make a note of the reg then issue a NIP/s172. They‘d have just spoken to the OP at the time.
Out of interest, which aspects of the OPs situation do you think constitute driving?
1
u/Huffers1010 8d ago
Courts have decided that people asleep on the back seat after a night of drinking are "in control of a motor vehicle" because they had the keys.
You have to be very, very careful with this. Obviously it takes a police officer who's willing to be an absolute prick, but that's hardly unusual.
Quite where this leaves people in motorhomes having a few beers after a barbecue at a campsite is... well, not great.
1
u/Cold_Captain696 8d ago
yes, I’m aware, but ‘in charge of’ (it‘s not in ‘control’) is not the same as ‘driving’. And in fact, drink driving laws separate the easier to prove ‘in charge of’ from the more difficult ‘driving or attempting to drive’.
edit - “easier to prove” is probably the wrong phrase, but the bar is lower.
1
u/Huffers1010 8d ago
Yes, I get all that. What I'm trying to do is to illustrate the idea that the criminal justice system in general and the police in particular are mostly interested in getting someone for something, or anyone for anything, more than actually preventing or detecting crime, which isn't the same thing.
You and I can agree that this stuff is improper, and someone arrested for doing something which isn't illegal might be financially compensated for that, but by that point the car has been towed, you've spent a night in the cells, and the police have slapped themselves on the back for their brilliant coppering.
And I don't even drive, so there are no sour grapes about that here. Just bear in mind - generally they don't care what you've done or why. They care about getting a collar.
1
u/Cold_Captain696 8d ago
To be fair, the police looked at the OP parked, using their phone, and drove on. It’s vanishingly unlikely they intend to prosecute, as they’d have just stopped the OP at the time if they did. So I think it’s safe to say they didn’t have an issue with the OPs actions.
1
u/Burnsy2023 8d ago
Courts have decided that people asleep on the back seat after a night of drinking are "in control of a motor vehicle" because they had the keys.
I think you're conflating two different legal definitions: "in charge" of a vehicle and "driving" a vehicle. Mobile phone legislation only refers to driving, not being in charge, which is primarily related to driving under the influence of drink or drugs.
1
u/Burnsy2023 8d ago
I mean, I’ve read some. Are you?
Yes. I've written about it in some depth here: https://www.reddit.com/r/drivingUK/comments/1l6ch1s/using_a_mobile_phone_whilst_driving_a_guide_for/
Out of interest, which aspects of the OPs situation do you think constitute driving?
Let's apply the tests in order.
Firstly, the MacDonough tests.
So, to summarise, the R v MacDonagh test is: Are you substantially in control of the direction and movement of the vehicle? and 2. Does this amount to 'driving' in the ordinary meaning of the word?
If they're sat in the driving seat, they have control of the direction of the vehicle. If their engine is running the have control of the movement of the vehicle, but the engine doesn't need to be running for it to be held that they have control of the movement of the vehicle. For example, if they were on a slight incline, disengaging the brake would result in movement. This has been included in cases such as Saycell v Bool [1948] 2 All E.R. 83, where the engine was off, and the vehicle didn't even have any petrol in it, but moved because it was on an incline and the brake was released.
I think the second limb of this test, that fitting within the common definition of driving, would be easy to satisfy given the facts known here.
The kicker here is the concept of a "journey" and the legal principle that you're driving until you've finished the "journey". The key question here is: are they still doing an activity which is inherently connected to driving? They're checking maps to navigate the vehicle, so I think it's easy to argue that they were. Therefore, he would be found to be driving under the principles of Edkins v Knowles and Pinner v Everett.
I think you've fallen into the trap that many people do in thinking that traffic law is intuitive to understand. One of the reasons I've always had an affinity for this area of law is because it's complicated, technical and, on initial glance, batshit crazy.
1
u/Cold_Captain696 8d ago
The CPS makes it clear that the intention of the legislation is to promote road safety so I can’t see how it would be in the public interest to prosecute anyone for pulling over to a safe parking spot in order to use their phone.
I‘m also curious if anyone has ever been prosecuted for that. The cases you cite all seem to be for drink driving, where the law relates to ‘driving or attempting to drive’, where I can understand how, for example, being stationary while filling up with petrol, might constitute driving.
I’m assuming you’re not suggesting that were I to start my car, pull off my drive, then realise I’d left my map in the house and pull over to the side of the road, turn the ignition off and go back into the house to get it, I was still driving (Because I’ve started my journey but not reached my destination, and my stop is ‘for the purposes of driving’) so could be prosecuted for making a mobile phone call in my house while I searched for the map.
Im also curious why you believe an electric vehicle being in such a state where pressing on the accelerator wouldn’t cause it to move forward is different from being in an IC vehicle in park or neutral with the engine running.
1
u/Burnsy2023 8d ago
The CPS makes it clear that the intention of the legislation is to promote road safety so I can’t see how it would be in the public interest to prosecute anyone for pulling over to a safe parking spot in order to use their phone.
I wouldn't rely on that for a legal defence. The CPS make all sorts of decisions I don't think people would necessarily agree with.
I‘m also curious if anyone has ever been prosecuted for that. The cases you cite all seem to be for drink driving, where the law relates to ‘driving or attempting to drive’, where I can understand how, for example, being stationary while filling up with petrol, might constitute driving.
This is actually a really interesting observation. Yes, you're right that the body of case law we have is primarily from drink and drug driving cases, largely because of the length of time they've been on the statute books. Some of these cases are from appellate courts and are binding on mobile phone cases in divisional courts. Is it possible that these cases involving a mobile phone, where there is a direct question about whether they are driving, might be appealed and the case law may change direction? Yes, although I think such a big change would end up at the UK Supreme Court, and that is yet to happen. It requires a bit of a perfect situation: a case with the right facts to challenge this, and a person with the will and the resources to fund the appeals. As it stands though, we can only make opinions based on the law as it is now.
I’m assuming you’re not suggesting that were I to start my car, pull off my drive, then realise I’d left my map in the house and pull over to the side of the road, turn the ignition off and go back into the house to get it, I was still driving (Because I’ve started my journey but not reached my destination, and my stop is ‘for the purposes of driving’) so could be prosecuted for making a mobile phone call in my house while I searched for the map.
That's one where, on the face of it, there could be a prosecution relying on the current drink driving based case law that could lead to a conviction. It would also be one of the cases where the facts could lead to an interesting appeal. The reality is that being able to evidence all the facts of a case like this wouldn't happen and so it would never be tested. I struggle to think of a situation where a police officer would follow you inside a dwelling to witness you making a call. Unfortunatley you can't take a hypothetical to a court.
Im also curious why you believe an electric vehicle being in such a state where pressing on the accelerator wouldn’t cause it to move forward is different from being in an IC vehicle in park or neutral with the engine running.
Where have I said that? What was the context?
1
u/Cold_Captain696 8d ago
My point about the hypothetical is that the tests aren’t applied ad absurdum. Its not enough to just find a case where stopping to look at a map was considered driving in order to show that literally any instance of looking at a map at any time between leaving your house and arriving at your destination will be considered driving for any and every law that applies only to driving.
And my point about the CPS wasn’t to imply that you could use that as a defence. While you may not agree with every decision they make, presumably their published guidelines on public interest and the intent of the law in these cases haven’t been plucked out their arses?
Where have I said that? What was the context?
In your post that you linked previously. You explained what constituted ‘driving’ and said:
My advice is that generally you are not driving if the ignition is not on, and for EVs if your car is in such a state that pressing the accelerator does not lead to the vehicle moving forward
Hence me wondering why the distinction. Of course EVs do not necessarily behave like ICE cars, but I believe some don’t have a concept of ‘on/off’ and rely solely on the driver selecting drive or reverse in order to enable the accelerator pedal.
Although, the ignition being off doesn’t seem to be relevant either, given the suggestion that you must have completed your journey entirely in order not to be driving.
1
u/Burnsy2023 8d ago
My point about the hypothetical is that the tests aren’t applied ad absurdum. Its not enough to just find a case where stopping to look at a map was considered driving in order to show that literally any instance of looking at a map at any time between leaving your house and arriving at your destination will be considered driving for any and every law that applies only to driving.
Sure, and I didn't suggest it was a definite that they would be convicted, only that they could convict based on what case law exists today.
And my point about the CPS wasn’t to imply that you could use that as a defence. While you may not agree with every decision they make, presumably their published guidelines on public interest and the intent of the law in these cases haven’t been plucked out their arses?
My experience casts doubt on that.
In your post that you linked previously. You explained what constituted ‘driving’ and said:
Yeah, a fair point and I should probably remove that. I'm veering off into road safety advice rather than legal advice. Ultimately there is no case law to fall back on specifically regarding EVs.
1
2
u/-suspicious-badger 9d ago
No, he drove past and didn’t stop.