In the frame for driving whilst using a mobile phone?

DPP v Barreto: the mobile phone loophole you’ve been looking for?

Up until now, most people caught by police with a mobile phone in their hands like this gentleman would find themselves in the frame 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.

Then, Mr Barreto’s case came along. In a nutshell, Mr Barreto was caught videoing an accident scene on his mobile phone as he drove past it.

The issue for the High Court was whether Mr Barreto’s videoing was a breach of the regulations. Luckily for Mr Barreto, the High Court decided that the regulations do not prohibit all use of a mobile phone held while driving.

Will DPP v Barreto work for me?

Possibly. The problem is that the High Court judged this case on it’s specific facts – and the one charge.

That means that there’s no list of all the things it’s ok to do with your hand-held mobile phone while driving a car.

The other problem is that prosecutors have been waiting for this case to be decided – and in the meantime, they’ve been thinking about other charges they can use to prosecute drivers using their hand-held phones while driving.

One obvious possibility is the offence of Driving Without Due Care and Attention.

Remember that Without Due Care and Attention and Driving a Motor Vehicle While Using a Hand-held Mobile Telephone are two different offences. Just because you may be guilty of one thing doesn’t mean that you’d also be guilty of the other.

As always, apply the correct law (the legislation plus all relevant case law) to the facts of your case. Only then can you really know if the Crown Prosecution Service have charged you with the right offence – and what your prospects of success are should you end up at the Magistrates Court.