Do fleets need to re-evaluate how they use smartphones?

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Stricter laws concerning the use of smartphones while driving are now in effect, with the definition of ‘use’ expanding beyond interactive communication. We consider whether this could be a problem for fleet managers and drivers who use phones as part of their work.

Technology sometimes moves faster than the law can. When the Government introduced Regulation 110 of The Road Vehicles (Construction and Use) (Amendment) (No 4) Regulations, for example, which banned the use of mobile phones while driving, it did so based on the capabilities of mobile phones in 2003. For those too young to remember, that was calling, texting…and not much else.

By 2019 phones had evolved into the smart, multi-purpose devices that we use today. No longer just a phone, they were also cameras, route planners, TVs, computers, wallets, bank accounts, books, boarding passes, and much more besides.

This created a concerning loophole for drivers caught using their phones at the wheel. Under Regulation 110, using a mobile device for “interactive communication” was prohibited. Arguably, however, smartphone capabilities that did not involve the transfer of data were not covered and could therefore not be prosecuted under the Regulations.

This was certainly the case in 2019’s DPP v Barreto, where the High Court decided to uphold a quashed conviction against Ramsey Barreto for filming the aftermath of a serious accident while driving past it in Ruislip on 19 August 2017.

Although the High Court stressed that it “should not be thought that this is a green light for people to make films as they drive”, the decision did raise concerns as to whether the Regulation’s existing definitions of using a phone when driving had stood the test of time.

Why has the law on using mobile devices changed?

The Barreto case was a significant catalyst for the Government to review and consult on whether the current Regulation was fit for purpose. After all, the whole purpose of the Regulation’s introduction was to dissuade people from using phones while driving, the dangers of which are widely recognised.

According to UK road safety charity Brake, drivers that use a phone are four times more likely to be in a crash that results in injuries. Research from the University of Utah also shows that it can take half a minute for a person to regain their full attention after using a phone.

That half a minute – not to mention the time spent using the phone – can cost lives. In 2020, for example, 17 people were killed, 114 were seriously injured, and 385 were slightly injured in road traffic accidents involving a driver using a mobile device.

What does this mean for drivers?

Under the amended Regulations, which came into force March 2023, an offence is triggered whenever a driver holds or uses a mobile device while driving regardless of their intention, with notable exceptions being emergency situations and paying for items at drive-thru windows. This is because the definition of ‘use’ has expanded to include most actions that require illuminating the screen or unlocking the device, such as checking the time or notifications, using the camera, or accessing stored data.

If caught, drivers could face a financial penalty and up to six penalty points. For some with points already on their license, this could result in a driving disqualification.

Why might this be an issue for fleets?

For businesses that use elements of smartphone functionality when working with vehicles, these amendments may prove problematic.

While few fleet managers would encourage their employees to use phones while driving a vehicle, they may require employees to record data on a stationary car using a phone’s camera. Herein lies the problem, as the legal determination of ‘driving’ is not always restricted to a vehicle moving with the engine on.

The Road Traffic Act 1988 does not specify a definition of ‘drive’ or ‘driving’, but there are numerous case law examples that indicate the court’s position. 

In Pinner v Everett, for example, the court held that “a person is obviously driving although he may be in an almost interminable traffic block or waiting at a level crossing or at traffic lights or if he merely fills up with petrol; nor can it make any difference if in a traffic block he switches the engine off to prevent it overheating or to save petrol.”

The Divisional Court also summarised case law on when someone can be no longer driving in Edkins v Knowles. Key indicators include, but are not limited to, whether the driver has reached the end of the journey, whether their stop was connected to driving the car (for example, to fill up with petrol or check tyre pressure), if they got out of the car, and if they did not return for an extended period. Applying the handbrake and switching off the engine were both considered part of driving by the Divisional Court.

Things get more complicated in the Whelehan v DPP and Burgoyne v Phillips cases, in which both drivers were convicted of drink driving. In the former, police officers did not witness the defendant driving the car, but they were able to infer that he had been from the keys in the ignition and the heat from the engine.

In the latter, the defendant was deemed driving the car even though the steering was locked and the key was not in the ignition. In this instance, sitting behind the wheel, removing the parking brake, and allowing the car to roll 30 feet were together considered an act of driving.

If an employee puts the key in the ignition to light up the dashboard and record the mileage on their phone, then, are they breaking the law? On a strict interpretation, yes. 

What should fleets do now?

With the amended Regulation 110 now in force, businesses and fleet managers should conduct a thorough risk assessment of current practices involving vehicles and phones and, where possible, identify any current methods that may need to be changed. Training should then be delivered to upskill staff.

In the scenario above, for example, fleets may need to consider alternative methods to recording the mileage of a vehicle, whether that is by writing it down or by getting a second colleague to take the picture while the first colleague lights up the dashboard. 

The second suggestion may come with cost implications, so it is worth exploring options and alternatives with specialist support, particularly as this is a highly complex area of law.

Prosecution for using a mobile phone while driving is expensive and reputationally damaging for a business, not to mention emotionally distressing for the employee involved. It is better, therefore, to take a proactive approach now and identify risks and solutions before they develop into problems.

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