Director Of Public Prosecutions v Barreto [2019] EWHC 2044 (Admin)
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Director of Public Prosecutions v Barreto [2019] EWHC 2044 (Admin) concerned an appeal by way of case stated from the Crown Court at Isleworth, which had quashed Mr Barreto’s conviction for driving 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 Divisional Court, comprising Lady Justice Thirlwall DBE and Mr Justice Goss, dismissed the appeal.
Mr Barreto had been convicted in the magistrates’ court on 20 July 2018 and his appeal to the Crown Court was allowed on 15 October 2018. On 19 August 2017 he had been observed by a police officer driving past an accident scene in Field End Road, Ruislip, holding his mobile phone up to the driver’s window for between ten and fifteen seconds. When stopped, the phone was on his lap in video mode. Digital footage taken from the camera was in evidence. Although Mr Barreto claimed he had passed the phone to his son who filmed the scene, both courts below disbelieved him and found that he had filmed the scene himself as the officer described.
The Crown Court had relied on an earlier decision by the Crown Court at Harrow in Nader Eldarf (September 2018), which held that a motorist using a mobile phone to listen to stored music while driving did not breach the regulations because the conduct did not involve any external communication. Adopting the same reasoning, the Crown Court at Isleworth concluded that using a mobile phone to take a photograph or film did not amount to using a hand-held mobile telephone or device within section 41D and regulation 110. The Crown Court had found that an interactive communication function involved the external transmission of data to or from the telephone, not merely the operation of an internal function.
The central issue was the proper construction of regulation 110. Mr Mably QC for the Director of Public Prosecutions submitted that the regulation prohibited any use of a hand-held mobile telephone whilst driving and that it was unnecessary to prove the telephone was being used to make or receive a call or perform any other interactive communication function. He argued that regulation 110(6)(a) was a deeming provision concerning the meaning of hand-held rather than a provision that qualified the meaning of using, and that the Crown Court’s approach led to an incoherent construction which would mean a phone held in a driver’s hand while used was not hand-held unless receiving or transmitting data.
Ms Wood for Mr Barreto submitted that on a true construction of regulation 110, using a mobile telephone while driving was prohibited only if the device was held at some point during the course of making or receiving a call or performing any other interactive communication function. She argued that regulation 110(1)(a) was a prohibition on using mobile phones for their primary function of telephoning, not a blanket ban on any use, and that regulation 110(6)(a) clarified and qualified paragraph 1 by specifying what to treat as hand-held.
Lady Justice Thirlwall gave the judgment with which Mr Justice Goss agreed. She analysed the statutory framework, noting that section 41D created a specific offence of contravening a construction and use requirement as to not driving while using a hand-held mobile telephone or other hand-held interactive communication device. The word “other” in section 41D operated to equate a hand-held mobile phone with a hand-held interactive communication device. Regulation 110(1) prohibited driving while using a hand-held mobile telephone or a hand-held device of the kind specified in paragraph 4, which defined such a device as one which performed an interactive communication function by transmitting and receiving data.
Lady Justice Thirlwall held that as a matter of construction it was the use of a device for the performance of an interactive communication function which brought it within the definition in regulation 110(1)(b). She rejected the submission that paragraph 1 prohibited any use of any electronic function of a mobile phone, finding that the meaning of using in section 41D and regulation 110 was restricted in respect of hand-held devices to using the interactive communication function of the device. Given that mobile phones and interactive communication devices were equated in section 41D, there was no reason why use of a mobile phone should be given a wider ambit than use of an interactive communication device.
Lady Justice Thirlwall held that regulation 110(6)(a) was a deeming provision which treated as hand-held phones and other devices which were or must be held at some point during the course of making or receiving a call or performing any other interactive communication function. The effect was to attribute a different meaning to hand-held from the dictionary definition in order to achieve the legislative purpose of prohibiting the use while driving of mobile phones and other devices for calls and other interactive communication if held at some point. Hands-free use did not come within the provision, nor did hand-held use for a function other than interactive communication. If the regulation prohibited any use of any electronic function of a mobile phone, there would be no need for the requirement that the device be held at some point during the course of making or receiving a call or performing any other interactive communication function.
Lady Justice Thirlwall noted that a non-exhaustive list of interactive communication functions was set out at regulation 110(6)(c), including sending or receiving oral or written messages, facsimile documents, still or moving images, and providing access to the internet. She observed, without deciding the point, that there was an argument that sending and receiving messages included the drafting or recording and reading of messages, not just the nanosecond of transmitting or receipt of data.
Lady Justice Thirlwall concluded that the legislation did not prohibit all use of a mobile phone held while driving but prohibited driving while using a mobile phone or other device for calls and other interactive communication and holding it at some stage during that process. She rejected the submission that this interpretation was incoherent, finding that it coincided with and reflected the purpose of the legislation. It followed that Mr Barreto’s activity did not come within regulation 110 and the Crown Court was right to quash the conviction. Lady Justice Thirlwall emphasised that driving while filming or taking photographs, whether with a separate camera or with the camera on a phone, may be cogent evidence of careless or even dangerous driving, and that the same applied to any other use of the phone while driving. She noted consultation documents from Northern Ireland concerning the narrow ambit of identical legislation and observed that whether a review of the regulations was necessary to take account of current and potentially dangerous uses of mobile phones while driving was a matter for Parliament.
In short, the Divisional Court held that the offence of using a hand-held mobile telephone while driving was confined to using the device for calls or other interactive communication functions, not all uses of a phone’s functions, and that filming an accident scene did not therefore constitute the offence.