DPP v Barreto [2019] EWHC 2044 (Admin)

The appellant, Ramsey Barreto, was driving whilst using his hand-held mobile phone to film a road traffic accident. The police prosecutor charged him with using a hand-held mobile phone whilst driving and he was convicted after trial in the Magistrates' Court. He appealed to the Crown Court where his appeal was allowed.

The Director of Public Prosecutions then appealed to the High Court. This case was heard by Lady Justice Thirlwall and Mr Justice Goss on 9th April 2019. Judgment was reserved to 31st July 2019.

Lady Justice Thirlwall:

This is an appeal by way of case stated from a decision of the Crown Court sitting at Isleworth quashing the respondent’s conviction for driving a motor vehicle while using a hand-held mobile telephone, contrary to Section 41D of the Road Traffic Act 1988 and Regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986.

The alleged offence took place on 19th August 2017. The respondent had been convicted after a trial in the Magistrates’ Court on 20th July 2018. His appeal was allowed on 15 th October 2018.
In summary: the respondent was seen filming an accident scene as he drove past it. He was using the camera on his mobile phone to do so. The question in this case is whether the filming constituted a breach of the regulations.

It is the appellant’s case that the regulation prohibits all use of a mobile phone while driving. It is the respondent’s case that the regulations are directed only to the use of phones and other devices for the purposes of interactive communication.

The answer to this appeal lies in the interpretation of legislation in the terms that Parliament chose to enact it rather than as it might be assumed to be.

Held: The legislation does not prohibit all use of a mobile phone held while driving. It prohibits driving while using a mobile phone or other device for calls and other interactive communication (and holding it at some stage during that process).  A non-exhaustive list of interactive communication functions is set out at Paragraph 6(c) which reads:

“interactive communication function”, includes the following:

(i) sending or receiving oral or written messages;

(ii) sending or receiving facsimile documents;

(iii) sending or receiving still or moving images; and

(iv) providing access to the internet…”

Whilst it is not necessary for the purposes of this case to decide this point there is an argument that sending and receiving messages includes the drafting or recording of the messages and the reading of them and not just the nanosecond of the transmitting or receipt of data. Without the data there is nothing to communicate. In the non-digital world interactive communication is not restricted to the posting of the letter, its sorting and its delivery.

Without the writing and reading of the letter there is no communication. In the digital sphere each aspect of the drafting, sending and reading/viewing/replying is an intrinsic part of using a device which performs interactive communication as defined. Since these issues do not arise in this case I say no more about them.

It should not be thought that this is a green light for people to make films as they drive. As I have already said, driving while filming events or taking photographs whether with a separate camera or with the camera on a phone, may be cogent evidence of careless driving, and possibly of dangerous driving. It is criminal conduct which may be prosecuted and on conviction may result in the imposition of penalties significantly more serious than those which flow from breach of the regulations. The same applies to any other use of the phone while driving.

APPROVED JUDGMENT TRANSCRIPT

ADVICE

It is for the prosecutor to prove that using a hand-held mobile telephone or device for the purposes of Section 41D of the Act and Regulation 110 of the regulations involved an “interactive communication function” such as those set out in Regulation 110(6)(c). This may be a problem for the prosecution and written representations should be made to the prosecuting authority in appropriate cases.

It may be possible to to overturn old convictions. Whilst this may be difficult in cases where a fixed penalty was paid or the defendant pleaded guilty at court, if a defendant was convicted after trial (especially where a finding of fact was made about the specific use) then the Magistrates' court may be prepared to re-open the conviction or otherwise the defendant could apply to the Crown Court to appeal out of time. There are procedures available to challenge a previous conviction - even after pleading guilty or paying a fixed penalty.

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