The Batsman’s Holding……

ImageI know, the heading to this post is rather tenuous. In fact, other than the name “Holding”, there is no real link at all. It’s just that it probably catches the eye a little more than “ The Driver’s Holding a Mobile Phone”. And it is the cricket season.

 

I’ve been involved in plenty of mobile phone cases – they are frequently litigated and although a conviction carries three points, the impact upon future insurance premiums is significant. More recently, the defence of  “ I was using my phone as a Dictaphone” has become something of a defendant’s favourite especially given the multi functional use of a current day smartphone.

 

The offence of “using a mobile phone” is  found in the Road Vehicles (Construction and Use) Regulations 1986 (SI1986/1078), Regulation 110.

 

Three offences are in fact created:

 

–       use by the driver

–       causing or permitting the use by the driver

–       supervising a provisional licence holder whilst using

 

The item being held must be either a “hand-held mobile telephone” or “a device, other than a two-way radio, which performs an interactive communication function”

 

So what is an interactive communication function?

 

It is partially defined, although not conclusively so:

 

“Interactive Communication Function includes the following:

 

–       sending or receiving oral or written messages;

–       sending or receiving facsimile documents

–       sending or receiving still or moving images; and

–       providing access to the internet.

 

And so it does seem, provided of course there is no evidence of a recent call or message having been made ( and, importantly, where the evidence of the driver is credible) that where such a defence is raised,it is valid, for dictating is not an “interactive” communication function.

 

I don’t advocate dictating whilst driving, I hasten to add. It may give rise to a successful defence on using a mobile phone. I wonder how valid a defence it may be, though, to driving without due care and attention.

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