A article published in the Glasgow Herald on 14 August has stated Scotland “has been found to have the highest levels of distracted driving offences in the UK”. Asked to comment on the findings, a spokesman for our moral guardians at Brake stated:

The number of distracted driving offences in Scotland is cause for concern and highlights that there is still much work to be done regarding the dangers of phone use behind the wheel. We need urgent clarification of the law on using hand-held mobile devices while driving, including closing loopholes which treat sending or receiving data differently. The current law also provides a dangerous false impression that it is safe to use a mobile phone with a hands-free kit – it is not. All phone use behind the wheel is dangerous, and we need the law to reflect this by banning the use of hands-free devices

Quoted in Glasgow herald, 14 august 2019

Apparently – in linked news – the transport select committee of the UK Parliament is now recommending a blanket ban on all mobile phone usage while driving including hands-free use

So just how accurate is the claim made in the Herald? Do I agree with Brake? Should the UK Parliament legislate to ban hands-free mobile phone use while driving? My answers, respectively, are “dunno”; ” with a wee bit of it”; and “no”.

First let me make clear what I do agree with. I agree with the increased penalty for driving while using a mobile phone. I agree that driving while using a mobile phone can be distracting. I agree that using phone in a “hands free” capacity can also be distracting. And before anyone says “how is that different from talking to a passenger”, we would suggest that they read this article from the New York Times. For numerous reasons, chatting on the phone simply is more distracting than chatting to a passenger. Whether it amounts to a criminal level of distraction is another issue.

Now for the problems. First the methodology. The Herald bases its claim that Scotland has (current tense) the highest levels of distracted driving offences in the UK primarily on research carried out by Peter Vardy car dealership. This revealed that in around nine months after the increase in penalties for driving using a mobile phone, there had been 8,747 recorded offences across 13 constabularies in the UK. Scotland was said to have been the worst region, accounting for 2,220 of these.

Now that all sounds pretty darn impressive. But consider it more closely. The data encompassed a time period of March 2017-December 2017. That is hardly current. Furthermore it is based on a survey of 13 constabularies across the UK. The last time I checked (today), there were 43 such constabularies. So a more accurate headline would be that Scotland had the highest level of distracted driving offences in a survey of less than a third of the UK’s constabularies. But that is less catchy I suppose.

Second, some of the inaccurate and unchallenged remarks made by the Brake spokesman. For example, the claim that “all phone use behind the wheel is dangerous”. I recall a recent case of ours where it was alleged (incorrectly as it happens) that our client was checking a text while sitting stationary at a red light. That may be illegal but is it “dangerous”? Many are now calling for obligatory disqualifications for using a mobile phone while driving. Does the above case really merit a disqualification? Opinions will vary, of course, but to rob a court of its common sense discretion achieves nothing. Another nugget from Brake was the claim about loopholes “which treat sending or receiving data differently”. There is no such “loophole”.

And third, what about the suggested solution to our problems? A ban on “hands-free” use. The article focuses on the tragic case of Yvonne Blackman, a lady killed by an HGV driver using his mobile phone. The gentleman concerned correctly pleaded Guilty to causing death by dangerous driving after focusing on his phone for a full 18 seconds instead of the road. That case has nothing whatsoever to do with using a phone in a “hands-free” capacity. The driver was touching his phone for the majority of the time as was obvious from the in-cab footage of the incident.

The fact is that Parliament considered banning all mobile phone use when debating the introduction of mobile phone legislation, including hands free use. The conclusion was that it would be too difficult to police. And that is obvious. It is one thing when there has been a tragic accident. In those circumstances the police will usually seize the suspect’s phone and have it analysed for use at the time. If it has been used, even in an otherwise legal “hands free” manner, it is still a relevant fact in the case and will inevitably be seen as an aggravating factor in a case of causing death by careless driving or – more likely – causing death by dangerous driving.  However what about everyday policing? How exactly are the police meant to know if someone is using their phone in a hands-free capacity? Spotting a earpiece? Seeing lips move? Or are we to allow random checks of mobile phones for calls/texts/emails/internet searches with no way to be sure that the data displayed on the phone is accurate? Assuming the case proceeded to trial my view is that the Crown would require to produce the phone’s data in court. They would also need to cite the relevant expert who interrogated the phone. Any attempt to have a police officer speak to a call record which was not actually produced in evidence but that he had seen on the phone would fall foul of the rules of best evidence. Even then there would be myriad difficulties if, for example, there was more than one person in the car at the time. How does the Crown prove that the driver was the one actually using the phone?

But the bigger point is that there is no lacuna in the law. If a driver is distracted to a criminal extent due to using a phone in a hands free manner, legislation already exists to deal with it. Such a driver could be prosecuted for careless or dangerous driving or even section 41D(a) of the Road Traffic Act 1988 which specifically deals with distracted drivers. All that articles such as this – with its questionable methodology – do is inflame the readership. A look at the comments section to the article alone accomplishes that. My particular favourite was a reader who had a particularly inventive way to get round the evidential difficulties I alluded to above by stating “perhaps immediate roadside driver disqualification in obvious and flagrant cases would be particularly effective”. I’m sure it would be. All we need to do is forget about due process, the presumption of innocence and all those other annoying things that defence lawyers seem to think are important. Because if the police think they saw something they must of course be 100% correct. But it would only apply to “obvious and flagrant” cases one may say. And who decides what is obvious and flagrant. For “immediate roadside disqualification”, it would have to be the police. Despite our current Prime Minister’s populist push for “law and order”, we don’t live in a police state yet and hopefully we will not be living in one anytime soon.