Director of Public Prosecutions v Ramsey Barreto
| Jurisdiction | England & Wales |
| Judge | Lady Justice Thirlwall,Mr Justice Goss |
| Judgment Date | 31 July 2019 |
| Neutral Citation | [2019] EWHC 2044 (Admin) |
| Docket Number | Case No: CO/270/2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 July 2019 |
[2019] EWHC 2044 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Thirlwall DBE
and
Mr Justice Goss
Case No: CO/270/2019
Mr Louis Mably QC (instructed by the Crown Prosecution Service) for the Appellant
Ms Jyoti Wood (instructed by Patterson Law) for the Respondent
Hearing date: 9 th April 2019
Approved Judgment
This is an appeal by way of case stated from a decision of the Crown Court sitting at Isleworth quashing the respondent's conviction for driving a motor vehicle 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 alleged offence took place on 19 th August 2017. The respondent had been convicted after a trial in the Magistrates' Court on 20 th July 2018. His appeal was allowed on 15 th October 2018.
In summary: the respondent was seen filming an accident scene as he drove past it. He was using the camera on his mobile phone to do so. The question in this case is whether the filming constituted a breach of the regulations. It is the appellant's case that the regulation prohibits all use of a mobile phone while driving. It is the respondent's case that the regulations are directed only to the use of phones and other devices for the purposes of interactive communication.
The answer to this appeal lies in the interpretation of legislation in the terms that Parliament chose to enact it rather than as it might be assumed to be.
FACTS
On 19 th August 2017 the respondent was driving his VW Caravelle along Field End Road in Ruislip. A serious accident had taken place. Motorists, including the respondent, were driving past slowly. A police officer observed the respondent holding his phone up to the driver's window for between 10 and 15 seconds. He stopped the respondent, at which point the phone was on his lap in video mode. He admitted what he had done and apologised. At his trial before the magistrates and on appeal he said he had passed the phone to his son and it was he who had filmed the scene. Digital footage taken from the camera was in evidence. In the event the Crown Court, like the Magistrates Court, disbelieved him and concluded that he had taken the film, as the police officer described.
At the hearing of the appeal the respondent's representative drew to the attention of the court a decision of the Crown Court in Harrow on an appeal against conviction for an offence under the same provisions in R v Nader Eldarf (21 st and 23 rd September 2018). In that case there was no dispute that the motorist, while driving, had been using his mobile phone to listen to music which was stored in the phone. In evidence he demonstrated how he changed the music tracks on his phone which he held in his hand, using his thumb. The issue was whether that conduct constituted using a mobile phone within the meaning of Regulation 110 and Section 41D. The court ruled that it did not because it did not involve any external communication. The Crown Court sitting at Isleworth adopted the same reasoning in this case and concluded that using a mobile phone to take a photograph or film did not amount to “using” a hand-held mobile telephone or device for the purposes of Section 41D of the Act and Regulation 110 of the regulations. Accordingly, the conviction was quashed.
Three questions were put before us by the Crown Court:
“1. Is using a hand-held mobile telephone or device for the purposes of Section 41D of the Act and Regulation 110 of the regulations restricted only to the use of an interactive communication function such as those set out in Regulation 110(6)(c) of the regulations?
2. Is holding a mobile telephone or device whilst driving, in order to take a photograph or a film, capable of amounting to using a hand-held mobile telephone or device for the purposes of Section 41D of the Act and Regulation 110 of the regulations?
3. Were we correct to conclude that the Respondent's conduct did not amount to “using” a hand-held mobile telephone or device for the purposes of Section 41D of the Act and Regulation 110 of the regulations?”
For the purposes of this appeal it is necessary only to answer questions 1 and 3.
The statutory framework
By operation of Section 41D of the Road Traffic Act 1988 and Regulation 110 of the Road Vehicles Construction and Use Regulations 1986 it is an offence to drive a motor vehicle while using a hand-held mobile telephone. We are grateful to Mr Mably for his clear exposition of the history of the statutory scheme. The regulations were enacted pursuant to Section 41 of the Road Traffic Act 1972 which gave the Secretary of State power to make regulations as to the use and construction of motor vehicles. Section 42 of the Act made it a criminal offence to contravene a regulation made under Section 41.
Amendments made by the Road Safety Act 2006, which came into force on 27 February 2007, included Section 41D which created a specific offence relating to the contravention of the requirements of Regulation 110, itself introduced with effect from 1 December 2003.
Section 41D reads:
“A person who contravenes or fails to comply with a construction and use requirement
(b) as to not driving …while using a hand-held mobile telephone or other hand-held interactive communication device …
is guilty of an offence.”
The relevant part of Regulation 110 reads as follows:
“(1) No person shall drive a motor vehicle on a road if he is using –
(a) a hand-held mobile telephone; or
(b) a hand-held device of a kind specified in paragraph (4)
…
(4) A device referred to in paragraph …(1)(b)… is a device, other than a two-way radio which performs an interactive communication function by transmitting and receiving data.
…
(6) For the purposes of this Regulation –
(a) a mobile telephone or other 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;
…
(c) “interactive communication function”, includes the following:
(i) sending or receiving oral or written messages;
(ii) sending or receiving facsimile documents;
(iii) sending or receiving still or moving images; and
(iv) providing access to the internet…”
The Respondent's case
Ms Wood, on behalf of the respondent submits that on a true construction of Regulation 110 using a mobile telephone while driving is prohibited [only] if the device is held at some point during the course of making or receiving a call or performing any other interactive communication function. It follows that since the respondent was using a different type of function, namely filming, the Crown Court was correct to quash the conviction as the conduct did not fall within the scope of the offence charged.
She developed her submission thus:
1. It is arguable that paragraph 1(a) of the regulation is a prohibition on using mobile phones when performing their primary function of telephoning – a ban on using a device for communication, and not merely a blanket ban on any use of a mobile telephone.
2. Hand-held has two possible meanings:
a) something physically held in the hand; and
b) a piece of technology compact and portable enough to be able to be held and used in one or both hands – a description of a type of device.
3. The definition of a hand-held device in 110(1)(b) is provided in paragraph (4) of the regulations (see above).
4. Paragraph 1(b) applies only to hand-held communication devices, not to all hand-held electronic devices.
5. The effect of taking together 110(1) and 110(4) is, she submits, that no person shall drive a motor vehicle on a road if he is using a hand-held mobile telephone or hand-held device…which performs an interactive communication function by transmitting and receiving data. I understand the latter phrase to mean “which is performing an interactive communication function…”
She further submits that subparagraph 110(6) (a) clarifies and qualifies paragraph (1) by specifying what to treat as “a hand-held mobile telephone” when considering whether use falls foul of paragraph (1).
Ms Wood points to and relies on the consultation decision letter of 24 th June 2003 from the Department of Transport in respect of its consultation “Mobile Phones and Driving” which preceded the regulations. The passage relied on reads
“We now consider that a more practical approach would be to prohibit the type of activity rather than to try and define different devices. The offence will therefore apply to drivers speaking or listening to a phone call, using a device interactively for accessing any sort of data, which would include the Internet, sending or receiving text messages or other images if it is held in the driver's hand during at least part of the period of its operation.”
As to this latter point, although the regulations are imperfectly drafted, they are sufficiently clear for the court to be able to interpret them without external information. In any event whatever else was intended, it was not intended to prohibit drivers from “speaking or listening to a phone call” as the letter suggests. What may have been intended was to prohibit drivers “from conducting a conversation on a mobile phone while holding it.” Be that as it may, we are concerned with what found its way into the legislation, not things which did not.
The Crown Court decision
The Crown Court concluded that paragraph 6(a) of Regulation 110 defines, for the purposes of paragraph (1), the function that the mobile telephone must be used to perform (while driving) and while it is held in the hand, namely: “making or...
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