I 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.