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

This is an arguably 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 Divisional Court will soon rule upon a similar case in DPP v Baretto [2019] EWHC

The crown 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 Nader 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 in DPP v Barreto [2019] EWHC.