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#Post#: 32702--------------------------------------------------
Mobile phone offence - "driving" while stationary -
discussion
DIR By: andy_foster
Date: August 8, 2024, 9:08 am
---------------------------------------------------------
For most offences, the courts have to decide what Parliament
intended or did not intend, based ostensibly on the wording of
the legislation.
There is a general rule that courts must start with the
presumption that Parliament did not intend to punish a given
action unless the wording of the legislation convinces them
otherwise, and that any ambiguity must be construed such that
the action is not punished. No, really.
For drink driving, to pick a poor example, if a driver stop
briefly, his level of intoxication does not materially change,
so there would seem to be little material distinction as to
whether he was actively driving the vehicle or sat in the back
of the police car blowing into a tube when he is sat in the back
of a police car blowing into a tube.
Did Parliament really intend that a driver who checks his phone
briefly when he knows he will be sat at the traffic lights for a
minute with the handbrake on should get 6 points - the same as a
driver who is texting while driving past a school at 3.30? I
would say not, but some would disagree.
However, Parliament's intention is not the only question (unless
it is decided that Parliament agreed with me). If the device was
being used to receive or share ideas or information, the
qualified right to do so without interference by public
authority under Art 10.1 ECHR is engaged. The question then
becomes whether it is necessary and proportionate to restrict
such rights in such circumstances to protect the rights or
safety of others.
Not only does "it's the law" not in itself cut it, any
justification for the restriction must be necessary and
proportionate.
As regards texting while driving past a school, absent the most
contrived emergency which would be covered by the statutory
exceptions anyway, it would be very hard to argue that the
restriction was not necessary or proportionate.
When sat at the traffic lights, there are arguments that might
support Parliament intending to prohibit such behaviour (while
still permitting a conference call if operated hands-free), but
the hurdle for finding that such a restriction is necessary and
proportionate is higher.
We hear that there have been numerous failed defences of not
driving in mags' courts. I have not seen or heard the content of
any such defences, or whether they sought to argue Art 10.1/HRA.
N.B. I would further argue that where such behaviour can
potentially become problematic, but does not inevitably become
so, there is no necessity for the specific restriction where a
more general provision prohibiting the causing of the problem
could readily be used. For example, if the argument is that a
person briefly checking his phone might potentially then become
entangled in some work issue that resulted in him not pulling
away promptly and holding up those sat behind him at the lights
- is there any good reason why the offence of driving without
due care and attention/consideration if it did cause that?
#Post#: 32706--------------------------------------------------
Re: Mobile phone offence - "driving" while stationary
- discussion
DIR By: The Rookie
Date: August 8, 2024, 10:10 am
---------------------------------------------------------
Research shows that the distraction from using a phone lasts for
up to 28 seconds after the phone use stops, the less complex the
use, the lesser time it takes to 'recover'.
It could be argued that making a hand held call is no different
to a hands free in that respect, however more complex
interactions like browsing 'socials' or using WhatsApp are
different.
There is also the congestion impact as people using a phone
react slower (the 'WhatsApp gap') thus may increase congestion
by allowing less cars to pass a junction per cycle.
In other words there are a number of benefits which may have
been intended by parliament that may suggest they did intend,
and for a reason, to prohibit phone use while stationary. There
is also the issue of trying to prevent drivers who are using it
stationary from moving off 'while' they finish and put down the
phone, like the one I saw drive into the back of the car in
front just yesterday as it had moved and stopped and he 'pulled
away' straight into the back of it while still 'disengaging'
from the phone.
#Post#: 32853--------------------------------------------------
Re: Mobile phone offence - "driving" while stationary
- discussion
DIR By: tonys
Date: August 10, 2024, 2:11 am
---------------------------------------------------------
--- Quote from: andy_foster link ---
>
> For example, if the argument is that a person briefly checking
his phone might potentially then become entangled in some work
issue that resulted in him not pulling away promptly and holding
up those sat behind him at the lights - is there any good reason
why the offence of driving without due care and
attention/consideration if it did cause that?
--- End Quote ---
There are plenty of road traffic laws intended to prohibit
behaviour before it leads to anything harmful. The classic being
"drunk in chrge" or whatever the correct term is. It could be
argued that no possible harm can come from being in charge,
unless you start driving in which case drunk driving could be
used.
That could be extended to traffic sign contraventions as well.
The act of passing a red light doesn't in itself cause harm, nor
does exceeding a speed limit.
#Post#: 32866--------------------------------------------------
Re: Mobile phone offence - "driving" while stationary
- discussion
DIR By: andy_foster
Date: August 10, 2024, 6:34 am
---------------------------------------------------------
Drunk in charge is a specific offence, so Parliament's intention
was very clear. However, taken to the exrtreme I could be
prosecuted every time I walk 2 miles to the pub and have a few
pints as my car key would be with me as it lives on the same
ring as my house keys.
To suggest that passing a red light does not in itself cause
harm, is, on the face of it at least, utter bollox. It often
does not cause harm, but sometimes does.
None of these examples concern the definition of driving. You
cannot drive past a red light while stopped at the lights.
The big difference between the examples above and Cycling Mikey
sticking his head in car windows when cycling past a queue of
stationary vehicles at the traffic lights, for such examples, it
matters not whether the application of the law is proportionate
and necessary in that case, the law is the law. Where qualified
convention rights are involved, if the restriction is not
necessary and proportionate, it must be read in such a way as to
uphold the qualified right (except where the wording of Primary
legislation is such as to make this impossible).
#Post#: 33525--------------------------------------------------
Re: Mobile phone offence - "driving" while stationary
- discussion
DIR By: roythebus
Date: August 15, 2024, 5:39 pm
---------------------------------------------------------
I would suggest that most motoring laws legislate against
everything that has minimal risk as someone above suggested,
breaking the speed limit per se isn't dangerous except in some
circumstances. Crossing the road can be very dangerous, but most
times isn't. Driving on a bald tyre can be dangerous, but
usually isn't. Having the wrong number plate font is in no way
dangerous to anybody except the feds who need it to ID your car.
Everything we do on a road can be dangerous, but in most cases
isn't. But my view is that an increasing number of cases using a
mobile phone causes more danger to other road users as it takes
attention away from the road for too long. Being higher up when
driving my bus than most car drivers, it's worrying to see how
many car and van drivers use mobile devices when driving.
The bus companies I drive for expect me to read messages from
the control room that pop up on the ticket machine or iBus
radio. The former means glancing across at the ticket machine,
the iBus radio on the TfL buses is fitted in the top of the cab
and requires the driver to move his view to the cab ceiling
instead of the road in front. They are both mobile devices but
don't AFAI work on the prescribed frequencies and they are fixed
devices.
#Post#: 33535--------------------------------------------------
Re: Mobile phone offence - "driving" while stationary
- discussion
DIR By: The Rookie
Date: August 16, 2024, 3:18 am
---------------------------------------------------------
--- Quote from: andy_foster link ---
>
> if the restriction is not necessary and proportionate, it must
be read in such a way as to uphold the qualified right (except
where the wording of Primary legislation is such as to make this
impossible).
>
--- End Quote ---
I did give 2 reasons why it was 'necessary and proportionate,
but to recap
1/ Testing has shown that the distraction lasts for up to 28
seconds after the phone engagement, so putting it down just
before you pull away in traffic means you are still distracted.
2/ (split out from 1 here) There is still an argument it is
proportionate in preventing 'distracted pullaways' where people
disengage as/shortly after they start moving (with an
equivalence to the drunk in charge mentioned)
3/ Even if you ignore those two, there is an impact on
congestion where drivers who are distracted frequently are
slower to respond to traffic light changes (the 'whatsApp gap'
as it's often called), if you lose one car progressing through a
junction, that extra one car in the queue stays (at congestion
prone junctions) for a long term (end of rush hour or even all
day), repeat that multiple times and you increase congestion
(longer journey times, increased pollution) for many hundreds of
road users.
#Post#: 33552--------------------------------------------------
Re: Mobile phone offence - "driving" while stationary
- discussion
DIR By: baroudeur
Date: August 16, 2024, 6:17 am
---------------------------------------------------------
--- Quote from: roythebus link ---
>
> [quote author=roythebus link=topic=2761.msg33525#msg33525
date=1723761596]
>
>
> ........Having the wrong number plate font is in no way
dangerous to anybody except the feds who need it to ID your car.
......
>
>
--- End Quote ---
Some might suggest that it indicates the mindset of those who
have such plates?
But it's certainly not dangerous to the Feds[/quote]
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