No excuse, no phone use

DIA Insurance ADI News

This month we pick up on a couple of cases concerning removals from the register for mobile phone use, either at the wheel, or in the passenger seat supervising a pupil.

Because that’s exactly, as we all well know, what trainers shouldn’t do – pick up their mobile phone to answer phone calls, listen to voicemails, text, Facebook, Tweet or whatever. They also mustn’t take a call hands free or issue a voice command to an app in terms of Fit and Proper conduct. These rules apply whether they’re at the wheel or in the passenger seat, supervising the lesson.

Legislation and regulation is clear on these points, yet sadly we still see trainers put themselves, their livelihood, their pupils and other road users at risk in a spur of the moment decision to grab that phone. 

Trainers may feel they have justification for their actions and, in these cases, will often attempt to present mitigating circumstances, such as an emergency requiring phone use. The reality is, as we’ll see in this month’s cases, there’s very little that will excuse phone use at the wheel – or for a trainer when supervising training.

But first let’s have a recap of the legislation and regulation which governs this area – both from a driver and trainer’s perspective, behind the wheel or in the passenger seat. 

Offences

The Road Vehicles (Construction and Use) (Amendment) (No 4) Regulations 2003 came into force on 1 December 2003. Regulation 110(1) and (2) prohibits a person from driving, or causing or permitting a person to drive, a motor vehicle on a road if the driver is using a held-hand mobile telephone or a hand-held device for an interactive communication function. 

Regulation 110(3) prohibits a person from using a hand-held mobile telephone or hand-held device while supervising a holder of a provisional license (learner driver), while the learner is driving.

It is an offence under Section 41D(b) of the RTA to contravene Regulation 110. The penalty imposed will depend upon the type of vehicle driven.

Key definitions

Hand-held

Regulation 110 does not define “hand-held” although 10(6)(a) states that a mobile phone or device is to be treated as hand-held if it is, or must be, held at some point during the course of making or receiving a call, or performing any other interactive communication function.  

However, while the Road Traffic Act is focused on the use of hand-held devices only (and this may sometimes lead to more naïve trainers thinking using a hands-free function carries no legislative or regulatory risk – even if the element of distraction while using hands free represents the bigger overall risk) complaints of trainers frequently using hands-free functions while in a supervisory role could lead the Registrar to consider removal of their badge under Fit and Proper. 

This is especially true if there were other factors which meant the Registrar was already scrutinising whether the trainer was a Fit and Proper person to remain on the Register.

Driving

Whether or not a person is driving will be a matter of fact and degree in every case but there is some guidance to be found in the Road Traffic Act and in case-law.

There is no specific definition of “drive” or “driving” in the RTA but section 192(1) provides that (except for the purposes of the offence of causing death by dangerous driving) “drive” and “driver” include anyone in another vehicle acting as steersman.

A vehicle may be deemed as being driven even when it is stationary. 

In the case Edkins v Knowles (1973) a Court summarised the case-law on the subject of when “driving” ceased:

The vehicle need not be moving. Once it has come to rest the operations of applying the handbrake, switching off the ignition etc should be considered as part of the driving.

Has the motorist reached the end of their journey? Subject to the brief interval needed to carry out the operations referred to above then on reaching the end of the journey they should no longer be regarded as driving.

When the motorist stops during the journey the following questions will be relevant in deciding whether they are still driving or not: Is the purpose of the stop connected with the driving? How long was the stop? The longer it was the less likely it is that they can still be considered to be driving. Did they get out? If not, that is an indication (although not conclusive) that they are still driving.

When a motorist has been effectively prevented or dissuaded from driving then they are no longer to be considered as driving.

This means that an individual stopped at a traffic light or held up in traffic could be prosecuted for a mobile phone offence and it should be examined whether the use of the phone or other device is in circumstances which might prejudice the driver’s ability to drive safely.

In terms of road safety, this is important because a person who uses their phone while stationary at traffic lights will be distracted and less able to move off safely when the lights change. Similar considerations would apply to a driver stationary in a traffic jam.

Defences

Regulation 110(5) provides that no offence is committed where a person makes a call to the emergency services on 999 or 112 in response to a genuine emergency, where it is unsafe or impracticable for them (or the provisional licence holder) to cease driving while the call is made.

Sentencing

The offence carries a maximum penalty of a Level 3 fine (or level 4 in the case of a goods vehicle or a vehicle adapted to carry more than eight passengers) and is endorsable with six penalty points. The court may at its discretion order the defendant to be disqualified.

Drivers may be issued with a fixed penalty notice rather than being taken to court in which case the penalty payable is £200 and the licence will be endorsed with six points. (The Road Traffic Offenders Act 1988 (Penalty Points) (Amendment) Order 2017 / The Fixed Penalty (Amendment) Order 2017).

Fit and Proper 

Under Fit and Proper guidelines the Registrar can seek to remove an ADI for mobile phone related issues because they have been notified a licence holder has a motoring offence as described above (and have effectively been caught using a hand-held device). As we noted earlier, they could also remove a licence under Fit and Proper if there have been complaints (harder to prove admittedly!) that a trainer has been using a phone hands free for calls, voice command functions, etc in a lesson and while supervising – especially in addition to other allegations or findings that a trainer is not conducting themselves in a fit and proper manner. It’s also clear in the ADI Code of Practice: “Not using mobile devices like phones when driving or supervising client’s driving and only when parked in a safe and legal place.”

In the summing up of most GRC Tribunals where appeals have been made by trainers in respect of removals for mobile phone use, you will often find this basis used in the ruling itself:

“The basis for the Registrar’s decision was that the appellant does not now fulfil the criteria to be a “fit and proper person” to have his name on the Register of Approved Driving Instructors, as is required by s.125(3) and s127(3) of the Road Traffic Act 1988.

“Conditions for entry or retention on the Register extend beyond instructional ability alone and require that the applicant be a fit and proper person. As such, account has to be taken of an applicant’s character, behaviour and standards of conduct. This involves consideration of all material matters, including convictions, cautions and other relevant behaviour, placing all matters in context, and balancing positive and negative features as appropriate. 

“The standing of the Register could be substantially diminished, and the public’s confidence undermined, if it were known that a person’s name had been permitted onto, or allowed to remain on, the Register when they had demonstrated behaviours, or been convicted or cautioned in relation to offences, substantially material to the question of fitness. This can be in respect of behaviour pertaining to motoring matters and other matters of responsibility, trustworthiness and prudence. Indeed, it would be unfair to others who have been scrupulous in their behaviour, and in observing the law, if such matters were ignored or overlooked. 

“The judgment of the Court of Appeal in Harris v. Registrar of Approved Driving Instructors [2010] EWCA Civ 808 confirmed that, “….. the condition is not simply that the applicant is a fit and proper person to be a driving instructor; it is that he is a fit and proper person to have his name entered in the register. Registration carries with it an official seal of approval …..the maintenance of public confidence in the register is important. For that purpose the Registrar must be in a position to carry out his function of scrutiny effectively, including consideration of the implications of any convictions of an applicant or a registered ADI. That is why there are stringent disclosure requirements.”

Not an emergency number, not an emergency.

There are a significant number of removals each year for motoring offences including mobile phone use at the wheel, or while in a supervisory capacity in the passenger seat.

As we discussed at the top of the article, in mitigation, trainers will sometimes put forward that the decision to use the phone was a departure from their normally very professional behaviour, but was necessitated by a personal emergency. In two recent tribunal cases (where the trainers had lodged an appeal against the removal decision), this was very much the case they wished to put forward. 

Both appellants had been caught using a hand-held device by the police and the offence notified to the Registrar as a matter of course (worth noting, the decision to remove was compounded by both appellants failure to notify the Registrar of the offence).

Both claimed a personal emergency (a call from a loved one in distress) triggered the need to use their phone, one listening to a voicemail while supervising a pupil who was driving, another taking a call from a family member while stopped at roadworks – in this case the trainer was driving.

In both cases the trainers felt the ‘emergency’ nature of the calls was mitigation for their actions. However in both cases the tribunal ruled that the calls taken were not ‘emergency’ calls as defined in the RTA (where a person makes a call to the emergency services on 999 or 112 in response to a genuine emergency) nor was it is unsafe or impracticable for them (or the provisional licence holder) to cease driving whilst the call was made.

In summing up in both cases (and in general the message is pretty much the same in such cases) the judges felt it would undermine public confidence in the Register for the appellant to remain on it with six penalty points. 

They also point to the fact that Parliament has placed considerable importance on the prohibition against the use of mobile phones by drivers and to allow the appellant’s case would fly against clear public policy. Those teaching students have to be able to show that they abide by the laws and indeed rules of the road.

Whilst an appeal panel will bear in mind the appellants’ motivation for the use of the phone, that doesn’t make for a justification and still goes against the above viewpoints. The view in both cases was that if the appellants’ personal emergency was so pressing they could have pulled over and then made a call (in the case of the trainer whose pupil was driving) or pulled in after moving through the roadworks in the case of the other appellant. Both appeals were refused and the appellants removed from the register.

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Source: ADI News

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