Regina v Nadar Eldarf - Harrow Crown Court - 23 September 2018

This is a wrongly decided case heard by a recorder and two magistrates sitting on an appeal against conviction at the Crown Court sitting at Harrow. A copy of the judgment was widely circulated in February 2019.

The court allowed an appeal against conviction by Nader Eldarf against his conviction by Willesden Magistrates’ Court on 23rd May 2018, for driving a motor vehicle while using an interactive communications device, namely a handheld mobile device, contrary to Regulation 110(1) of the Road Vehicles (Construction and Use) Regulations 1986, section 41D of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act, 1988.

The Recorder hearing the Eldarf case said;

It seems clear to us nevertheless that the essential purpose and scheme of the Regulation is devoted to the prohibition of the use, while driving, of the inherent external interactive communication functionality of the mobile telephone [110 (1)(a)] and like devices [110 (1)(b)]. This is characterised by the list of interactive communication functions contained in Para (6)(c), each of which relates to external interactivity, and not one internal activity as between the user and the device. If it had been the intention of the (secondary) legislature to prohibit any physical operation of the handset by the user, the Regulation could have been drafted accordingly, in the simplest of terms, and without the need for the concept of interactive connectivity and precise definitions thereof.

“on the particular facts of this case, where the appellant was agreed to be doing no more than operating an internal function of his mobile telephone, whatever other offence he may have been committing under the Road Traffic Act, we were not satisfied that he was guilty of committing the specific offence prohibited by Regulation 110.”

In 2003, following a consultation by the Department for Transport, the law regarding use of hand-held mobile telephones was amended by The Road Vehicles (Construction and Use) (Amendment) (No. 4) Regulations 2003. The Explanatory Note sets out the intended purpose of the new provision;

Regulations 110(1) and (2) prohibit a person from driving, or causing or permitting a person to drive, a motor vehicle on a road if the driver is using a hand-held mobile telephone or similar device.

Regulation 110(3) prohibits a person from using a mobile telephone or similar device while supervising a holder of a provisional licence at a time when the provisional licence holder is driving a motor vehicle on a road. It is an offence under section 42 of the Road Traffic Act 1988 to contravene these regulations.

Regulation 110(4) provides a definition of devices that are considered similar to hand-held mobile telephones for the purpose of these regulations. This definition excludes two-way radios.

Regulation 110(5) provides that in specific circumstances a person will not breach the regulation. Where a person makes a call to the emergency services on 999 or 112 in response to a genuine emergency where it is unsafe or impracticable for him (or the provisional licence holder) to cease driving while the call is being made, the regulation is not breached.

The response to the 2002 consultation published by the DFT included the following;

During the consultation, concern was expressed about the proposed definition of hand-held phones. The consultation document suggested that only those phones that had fixed speakers should be regarded as hands-free phones. However, there are numerous types of hands-free phones and kits to convert hand-held phones to provide some level of hands-free use.

We now consider that a more practical approach would be to prohibit the type of activity rather than to try and define different devices. The offence will therefore apply to drivers speaking or listening to a phone call, using a device interactively for accessing any sort of data, which would include the Internet, sending or receiving text messages or other images if it is held in the driver's hand during at least part of the period of its operation. We do not wish to prohibit the carrying of hand-held phones in vehicles or require them to be switched off. A phone may therefore continue to be used to receive data when it is in a vehicle providing the driver is not holding it.

Within the context of holding a phone, pushing buttons on a phone while it is in a cradle or if it is being operated via buttons on the steering wheel or handlebars of a motorbike would not, in our view, breach the new regulation.

The consultation explained that while the Department considers that drivers should not use hands- free phones, it was not proposed to include these within the scope of the new regulation due to enforcement difficulties. Although some respondents considered that further action was needed against hands-free use, the Department does not consider that hands-free phones should be prohibited unless they are being held during use.

The Department consulted on the basis that devices similar to mobile phones would be included in any new offence. There are now many types of hand-held electronic devices that can be used in a similar way to a phone to text, receive and record messages, access the Internet or data held within the device, or have dual or multi-functions. We wish to avoid creating a potential loophole and therefore holding any electronic device used for accessing oral, textual or pictorial communications will also be prohibited, provided that the device must be held at some point during the course of its operation.

In January 2018, Matthew Scott (@Barristerblog) published a ‘blog’ article entitled The law on using a mobile phone while driving is an out of date and incomprehensible mess. I agree with much of what is written therein. In particular, this commentary regarding paragraph 6 of Regulation 110;

If you read it carefully it is clear that it is not intended to define what is meant by “use” of a phone. It is directed towards the different issue of when a phone is to be “treated as hand-held.” The phrase “is to be treated as” extends the legal meaning of “hand-held” to situations in which a phone would otherwise not be considered “hand-held.” If a phone actually is held in someone’s hand it is a strange use of language to say it is “treated as hand-held,” it just is hand-held.

Had the intention been to restrict the meaning of “hand-held” to cases where the phone was being used for an interactive communications function, inserting the word “only” before “to be treated,” would have achieved that object. Alternatively a simple definition clause beginning: “A hand-held mobile telephone means ….” would have done the job.

As actually drafted, the Paragraph appears instead to extend the legal meaning of “hand-held” to some situations where the phone is not in fact in the driver’s hand. It catches, for example, the driver who starts a telephone conversation by holding a phone and dialling a number, and then drives with the phone sitting on his lap on loudspeaker. Without Paragraph (6) it could be argued that in this situation the phone was not “hand-held”. Paragraph (6) seems to close down that argument; the phone is to be “treated as hand-held” because “at some point during the course of making” the call it was held in his hand.

This construction of the Regulation avoids the undesirable, even absurd, result that drivers like Jimmy Carr are allowed to drive a motor vehicle on the road while using a hand-held mobile phone despite a law saying, in terms,“no person shall drive a motor vehicle on the road if he is using a hand held mobile telephone.” It is ridiculous that such a simple sentence should bear a convoluted meaning dependent on whether the phone is exchanging data or not.

Where does all this leave a driver who uses his phone as a satnav?

In this case the phone is being used as an “interactive communication device.” If the driver holds it whilst driving and either looks at the screen or listens to the commentary, he is breaking the law.

What about if, before he starts driving, the driver holds the phone in his hand, turns on the satnav app, and then places it on the passenger seat in order to listen to the navigation directions? There is an argument that because he has held the phone “at some point during the course of … performing [an] interactive communication function” he is to be treated as using a hand-held mobile phone while driving.

Thus, use of a mobile phone as a satnav may well be unlawful unless the app is turned on without holding the phone in your hand. Obviously, holding the phone in a special cradle will make it legal. But so too, I suppose, would pushing the necessary buttons or touching the necessary parts of the phone’s screen with your finger, as long as you do not actually pick it up and hold it. What a nonsensical law that is.

The fundamental problem is that in 2003 when the Regulation was drafted, mobile phones were very different things to those that we have today. The iPhone was not released until 2007. A mobile phone in 2003 was used for making calls or sending text messages. It was not used as a satnav, or for playing music or for almost any of the other myriad uses to which today’s phones are put. The result is that a law which might have been workable in 2003 has become a confusing mess.

There have, no doubt, been many Crown Court appeals against conviction in which Regulation 110 was considered by the court. The Nadar Eldarf case has received undue prominence because it was circulated to over 10,000 criminal practitioners via Crimeline. As a legal precedent, it is not worth the paper it is printed on. This case is no more ‘persuasive’ in a lower court than any of the other Crown Court appeals from the Magistrates’ Courts that may or may not have been decided in the same way. The difference with this case is that it has been disseminated widely. In due course, the Divisional Court will rule on this issue and there is little doubt that a similar case will be decided differently.

Drink driving and disqualification

If the offence charged is contrary to section 5(1)(a) of the Road Traffic Act 1988 then the minimum disqualification period is 12 months. The minimum disqualification period is increased to 3 years if the offender has been convicted of a relevant offence within 10 years. The minimum disqualification period is increased to 2 years if the offender has two or more 56+ day disqualifications in the preceding 3 years.

The court will refer to the chart below when deciding upon the appropriate length of disqualification.

drink-driving-sentencing-guideline.png

The court will also refer to the following list of factors when deciding upon the appropriate sentence.

Statutory aggravating factors:

  •  Previous convictions, having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction

  •  Offence committed whilst on bail

    Other aggravating factors:

    •  Failure to comply with current court orders

    •  Offence committed on licence or post sentence supervision

    •  LGV, HGV, PSV etc

    •  Poor road or weather conditions

    •  Carrying passengers

    •  Driving for hire or reward

    •  Evidence of unacceptable standard of driving

    •  Involved in accident

    •  High level of traffic or pedestrians in the vicinity

      Factors reducing seriousness or reflecting personal mitigation

    • No previous convictions or no relevant/recent convictions

    •  Genuine emergency established

    •  Spiked drinks

    •  Very short distance driven

    •  Remorse

    •  Good character and/or exemplary conduct

    •  Serious medical condition requiring urgent, intensive or long‐term treatment

    •  Age and/or lack of maturity where it affects the responsibility of the offender

    •  Mental disorder or learning disability

    •  Sole or primary carer for dependent relatives

Drug driving and disqualification

If the offence charged is contrary to section 5A of the Road Traffic Act 1988 then the minimum disqualification period is 12 months. The minimum disqualification period is increased to 3 years if the offender has been convicted of a relevant offence within 10 years. The minimum disqualification period is increased to 2 years if the offender has two or more 56+ day disqualifications in the preceding 3 years.

The court's guideline document refers to factors increasing seriousness. There's an exhaustive list:

• Evidence of another specified drug or alcohol in the body

• Evidence of an unacceptable standard of driving

• Driving an HGV, LGV or PSV.

• Driving a vehicle for hire or reward

If none of the aforementioned factors are present then the court should consider a disqualification period of 12-22 months.

If one or more of the aforementioned factors are present then the court should consider a disqualification period of 23-28 months.

If one or more of the aforementioned factors are present and one or more aggravating factors are present then the court should consider a disqualification period of 29-36 months. A non-exhaustive list of aggravating factors is published in the guideline document:

• Previous convictions (having regard to the nature of the offence, relevance and time elapsed)

• Location (e.g. near a school)

• Passengers

• High level of traffic or pedestrians

• Poor road or weather conditions

How much do barristers earn?

It was recently reported that 125 barristers earned in excess of £1m p.a. and another 200 barristers earned over £500,000. There are approximately 16,000 practising barristers in England & Wale. 125 represents fewer than 1% of the total.

Every year, practising barristers must declare their total income to the Bar Council. A practising certificate fee is payable depending on your declared income for the previous year.

In November 2016, the Bar Council published a consultation regarding practising certificate fees. The consultation revealed how many (of 15,800) barristers are in each practising certficate category:

how-much-do-barristers-earn.png

Approximately one-third of all practising barristers (31.7%) earn less than £60,000 p.a.

Approximately half of all practising barristers (51%) earn less than £90,000 p.a.

Approximately one-quarter of all practising barristers (27.2%) earn more than £150,000 p.a.

The aforementioned fees are subject to income tax and national insurance. Barristers in independent practice must also pay for travel, chambers fees, pension contributions, computer equipment, various mandatory subscriptions, and other unrecoverable expenses.

The Crown Prosecution Service is arguably the United Kingdom’s ‘largest law firm.’ Judging from their recruitment advertisements, the CPS employs a significant number of practising barristers who are in income bands 2 and 3.

Approximately one-quarter of all barristers hold themselves out as practising criminal law; the vast majority of whom are totally reliant upon Legal Aid. Legal aid cases are underfunded by the government and as a consequence, most criminal barristers are likely to be in income bands 1-3. Newly qualified criminal barristers will almost certainly be in income band 1.

Special Reasons in Speeding Cases

How to avoid penalty points for speeding

If an offender pleads guilty to a speeding offence he may escape endorsement if he can establish that there are Special Reasons not to endorse his licence.

The onus of proof to establish special reasons is on the defendant and the standard of proof is on the balance of probabilities. Special reasons must be supported by evidence. If the court finds special reasons then it is not bound to not endorse penalty points; it merely means that a discretion to not endorse then arises. To amount to special reasons a matter must:

  1. be a mitigating or extenuating circumstance

  2. not amount in law to a defence to the charge

  3. be directly connected wiht the commission of the offence

  4. be one which the court ought properly to take into consideration

Examples of Special Reasons in speeding cases

  • Emergency; Whittal v Kirkby [1946] 2 All ER 552

  • Emergency (hypoglycaemic attack); Warring Davies v DPP [2009] EWHC 1172

  • Illness (incontinence); Marks v West Midland Police [1981] RTR 471

  • Absence of signage; Burgess v West [1982] RTR 269

  • Solicitors’ clerk late for court; Police Prosecutor v Humphreys [1970] Crim LR 234

Duress and drink driving

A defendant who commits a crime under duress may in certain circumstances be excused liability. The defence can arise where the duress results from threats or the circumstances in which you find yourself.

Duress

The four elements of duress are as follows:

  1. That you reasonably believed that threats of death or serious injury had been made against you.

  2. That you reasonably believed that the threats would be carried out immediately and the threat was effective in the sense that there was no reasonable avenue of escape open to you to avoid the perceived threat

  3. That the threat of death or serious injury was the direct cause of you committing the offence.

  4. A sober person of reasonable firmness of your age, sex and character would have done what you did.

The prosecution must prove your guilt. It is for them to prove that the defence of duress does not apply. It is not for you to prove that it does apply.

Caselaw

There are several authorities regarding drink driving and duress.  Some of which are outlined in brief below:

DPP v Jones [1990] RTR 33

The defendant had been subjected to an attack in the car park of a public house. He got into his car which was then hit and kicked. He decided his only means of escape was to drive away. He continued to his home, a distance of one-and-a-half to two miles. The court held that the defence of necessity was available for a part of the journey to his house. The defendant did not even bother to check whether he was being pursued, whether on foot, or in a vehicle or in any other way. The defence of necessity did not avail the defendant other than for the initial part of the journey. It was unnecessary for him to have continued all the way home in his car. He could easily, especially as it appears that he was not being pursued, have pulled into a side road or into some other convenient place and proceeded for the rest of his journey home on foot. The defence of duress was not available to the defendant because he drove for a longer period than was necessary.

DPP v Bell [1992] Crim. L.R. 176

The defendant had been out drinking with some friends. Some trouble broke out which caused him to run back to his car pursued by others who were less than well disposed towards him. Fearing serious physical injury, he drove off for some distance in a state of terror. The fact that he drove only for some distance down the road and not all the way home was of significance. The defence of duress applied and had not been disproved by the prosecution.

DPP v Pittaway [1994] Crim. L.R. 600

The defendant ran 200yds home from a party outside which she had been the subject of angry words and unspecified threats from a man with whom she had formed a relationship, hid in her car for five minutes and then drove 200yds before being stopped. The man she was seeking to avoid was not in the vicinity at the time. In the court’s view, the justices had neglected to apply the objective limb of the test, since there was no evidence in either case of a threat of death or serious bodily injury.

DPP v Tomkinson [2001] R.T.R. 38

Following a New Year’s Eve party, the defendant was violently assaulted by her husband, who also injured himself and then departed in a taxi for hospital having left her without a phone, but saying that police were on their way and that she had better leave before he returned home. The police having failed to arrive, she left her house at about 6am to drive to her former home (where her children were) some 72 miles away. She was stopped by police about 9.30am and when breathalysed was found to be over the prescribed limit. The defence of duress did not avail her; she was no longer subjected to any effective threat of violence when she left the immediate area of her home in her car to commence the long journey from Harrogate to Sale, and there was no basis for the justices’ conclusion that a sober woman of reasonable firmness would or might have responded to the situation as the defendant did and drive 72 miles over the Pennines

CPS v Brown [2007] EWHC 3274

Mr Brown said that he had driven to avoid a violent confrontation following a threatening phone call. At the time he was stopped there was no evidence that the threat was continuing or that he reasonably believed he was being pursued. The case was remitted to the magistrates’ court with a direction to convict. The court did not have to resolve the question of whether or not the defence was available at the time he got into the car as it was not available when he was stopped.

Notice of Proposed Driving Disqualification

A defendant will be sent a notice of proposed driving disqualification if convicted of an offence and the court is considering whether to disqualify - because of the seriousness of the offence or the number of penalty points on the defendant's licence that were live at the time of the offence.

Receipt of a notice of proposed driving disqualification does not mean that a disqualification is inevitable. In many cases, a disqualification can be avoided - especially if the defendant can establish that exceptional hardship would follow from disqualification.

The notice will include a date by which a reply must be sent to the court. The reply can be sent by email or post.

If no reply is received then the court will proceed in the absence of the defendant and is entitled to disqualify in absence. The notice warns the defendant that a disqualification in absence would be immediate (from the deadline to respond).

There is usually a form to complete with two options:

A) No further information. I have no further information to give to the court and want the court to proceed in my absence. I understand that I may be disqualified on or after [date] and should not drive from that date until the result is confirmed by the court

B) I want to attend court. I wish to give more information to the court and request a hearing date to be set. I am unable to attend court on the following dates: [list avoid dates]

 

ADVICE

Disqualification from driving has serious consequences for many people.  In many cases, disqualification can be avoided where the case is properly prepared for court and the best mitigation is presented to the court. Instructing a direct access barrister is often less expensive than instructing a solicitor.

I have extensive experience and specialist knowledge of motoring offences.  I am regularly instructed by solicitors, corporations and members of the public. Anyone can instruct me directly pursuant to the Public Access scheme.

I provide a free telephone consultation service to new clients. My fees are reasonable and affordable. Most services are performed on an agreed fixed fee basis.  I will deal with your case from start to finish. You will not instruct me but get someone else at court. Your case will not be prepared by unqualified paralegals. I do all of the work on your case. Please contact me for further information.

Driving whilst using a hand-held mobile phone

The Road Vehicles (Construction and Use) Regulations 1986 prohibit driving whilst using a hand-held mobile telephone or a hand-held device (other than a two-way radio) which performs an interactive communication function by transmitting and receiving data.

The offence is made out if the defendant is:

(a) driving a motor vehicle on a road; AND
(b) holding the phone in his hand; AND
(c) using it.


There is an exemption which allows the use of a hand-held phone for a genuine emergency call where it would be unsafe for a driver to stop driving to make the call.

Legislation does not require the hand-held phone to be used for an interactive communication function.

The legislation does not set out what is meant by 'using'. However, in a ministerial statement in 2003 the following was said:


'The offence will apply to drivers speaking or listening to a phone call, using a device interactively for accessing any sort of data, which would include the Internet, sending or receiving text messages or other images if it is held in the driver's hand during at least part of the period of its operation. We do not wish to prohibit the carrying of hand-held phones in vehicles or require them to be switched off. A phone may therefore continue to be used to receive data when it is in a vehicle providing the driver is not holding it. Within the context of holding a phone, pushing buttons on a phone while it is in a cradle or if it is being operated via buttons on the steering wheel or handlebars of a motorbike would not, in our view, breach the new regulation.'

The offence can only be committed on a road (rather than 'on a road or other public place') and therefore if you are in a McDonalds car park or similar then you would likely have a defence to using a mobile phone on a road.

The offence is subject to a £200 fixed penalty and 6 penalty points. If the matter is dealt with at court then the there is a fine of up to £1000 and 6 penalty points or discretionary disqualification of any length.

New sentencing guidelines for motoring offences

The Sentencing Council has published revised guidelines for offences in the Magistrates’ Court Sentencing Guidelines.

The guidelines apply to all offenders aged 18 and older who are sentenced on or after 24 April 2017, regardless of the date of the offence.

 

Careless driving

What's new: The Council decided to remove ‘inexperience of the driver’ from the lower culpability factors, and added ‘vehicle used for the carriage of heavy goods or for the carriage of passengers for reward’ to higher culpability.

Driving whilst disqualified

Failure to provide a specimen for analysis

Failure to provide a specimen for analysis (in charge)

Fail to stop/report an accident

What's new: The Council has changed the factor 'subsequently reported’ or ‘significant attempt made to comply with duty to ‘reasonably believed identity known’ in line with the suggestion.

Driving with no insurance

Speeding

What's new - An increase the penalty for the top band of seriousness from a Band B to a Band C fine - "to ensure that there is clear increase in penalty as the seriousness of offending increases."

Driving whilst unfit through drink or drugs

In charge when unfit through drink or drugs

 

 

 

 

Maximum sentences

Road Traffic Act 1988

Section 1 (causing death by dangerous driving) - 14 years

Section 1A (causing serious injury by dangerous driving) - 5 years

Section 2 (dangerous driving) - 2 years

Section 2B (causing death by careless driving) - 5 years

Section 3A (causing death by careless driving under the influence of drink or drugs) - 14 years

Section 3ZB (causing death by driving when unlicensed or uninsured) - 2 years

Section 3ZC (causing death by driving when disqualified) - 10 years

Section 3ZD (causing serious injury by driving whilst disqualified) - 4 years

Secton 4(1) (driving whllst unfit through drink or drugs) - 6 months

Section 4(2) (being in charge whilst unfit through drink or drugs) - 3 months

Section 5(1)(a) (driving or attempting to drive with excess alcohol) - 6 months

Section 5(1)(b) (being in charge of a motor vehicle with excess alcohol) - 3 months

Section 5A(1)(a) (driving with a specified controlled drug above specified limit) - 6 months

Section 5A(1)(b) (being in charge of a motor vehicle with a specified controlled drug above specified limit) - 3 months