Tough rules on mobile use make sense. Keeping them secret doesn’t
The Government has issued strict advice on using phones in cars – but I only found it out in court
Not many people will have been given satnavs for Christmas. Once the must-have accessory for motorists, they have been rendered obsolete by mobile phones, which can offer driving directions for free. John Lewis has gone so far as to stop stocking satnavs, saying its customers now use smartphones docked in a cradle. I’ve been doing so for a while and have been spared hours in needless traffic jams. I’ve had plenty of cause to give thanks for this technology, until I ended up on trial in a Magistrates’ Court last week.
I told the court my story. My mobile had fallen down from the cradle, and had been sliding around the dashboard. At traffic lights, almost home, I retrieved it to put it in the car door – and, while doing so, I looked at the map on its screen. I noticed the policeman in a car opposite staring at me and couldn’t work out why, until he pulled me over.
Did I know that holding a phone was an offence that, under Chris Grayling’s new scheme, would mean a fine and six points on my licence? I said that I was unaware of this law: to use a phone, yes, that’s illegal, but to hold it? So when the letter came accusing me of “using”, rather than holding, the phone I pleaded not guilty, and asked for a trial.
Reader, I lost. But I didn’t really set out to win. My aim was to explore what a lawyer had told me: that Mr Grayling’s six points are given to those who transgress a detailed list of mobile phone offences – but that there is no way for motorists to find out about this list unless they end up in court.
As I sat in the dock, the clerk read out the rules that the Department of Transport won’t share. As I suspected, holding a phone is not, in itself, an offence. But if you “use” it while holding it, however fleetingly, then you’re guilty. If you so much as look at the screen to tell the time, or consult a map when stuck in traffic, then you’re “using” it as surely as if you held the handset to your ear while taking a corner on a country road.
This isn’t the law, just advice. But it’s advice by which motorists are judged, so it’s as good as law. Given how many accidents are caused by distracted drivers, a zero-tolerance policy makes sense. Failure to clarify the law makes less sense.
One of Grayling’s first acts as Transport Secretary was to double the number of penalty points for drivers who use mobile phones. But what does “use” mean? He doesn’t say. The comedian Jimmy Carr, for example, was found not guilty when he held his mobile to record a joke while on the road. The test, apparently, is whether an “interactive communication” was being performed. In fact, holding an old-fashioned satnav at the wheel throughout your journey is fine, because it’s not a mobile phone. But pick up an identically-shaped mobile when stuck in traffic, and it’s six points and a fine of up to £2,500. Satnav apps are OK when not held, illegal if picked up. Dictaphone apps are OK at any stage; non-interactive satnav apps probably OK. Clear?
It’s not at all clear, which makes it such an interesting point of law. The former Lord Chief Justice, Tom Bingham, famously wrote that the law should be accessible, intelligible, clear and predictable. If we are liable to be prosecuted, fined or even imprisoned we ought to be able – without undue difficulty – to find out what it is we must not do on pain of criminal penalty. The law is supposed to discourage. But we can’t be discouraged if we can’t easily find out what we should not be doing.
It’s not enough for ministers to offer advice; motorists need clarity on the law. Without certainty, mischief can grow. A survey by the RAC found that a third of under-25s take photos on their phone while driving; almost half do so when stuck in traffic. Dangerous, clearly, but illegal? Or permissible, under the Jimmy Carr defence? The law does not say. By relying on old leglislation – the 1988 Road Traffic Act – ministers have let legal confusion descend on a road safety issue. Magistrates’ advice, however detailed, is not legally binding and is (as I found out) virtually impossible to get hold of until you’re up before the Beak. Judges can modify the law, but only if a motorist in my situation appeals to the High Court and re-argues the point in front of a superior Judge, at some expense. I can’t say I’m tempted.
My own case is trivial. But when the law fails to keep pace with technology it can lead to far greater trouble. Ten years ago, the law prohibited the interception of phone calls “in the course of transmission”. Journalists, police and the Crown Prosecution Service all believed this meant it was not illegal to intercept old voicemails. When the CPS changed its advice, in the heat of a political furore, it led to the largest criminal investigation in history. An activity had been retrospectively deemed illegal, so all kinds of people might be found guilty. Yes, the hacking scandal was about skulduggery. But poorly-drafted, poorly-interpreted law played a part too.
One of Britain’s longest-serving Law Lords, Kenneth Diplock, once put all of this very clearly. Elementary justice, he ruled, “demands that the rules by which the citizen should be bound should be ascertainable by him (or, more realistically, by a competent lawyer advising him) by reference to sources that are publicly available”. And it’s the duty of parliament, he said, to provide legal clarity. I can share with you a quote given to me by a Department of Transport spokesman, to the effect that looking at a satnav app on a mobile does indeed count as “use” of a mobile phone. But this information can not be found on any official website. Is it fair that Daily Telegraph readers are given privileged access to the law?
As I was awaiting my verdict last week, the prosecutor joked that, if I lost, he’d expect to read a furious column about “how the law is an ass and the prosecutor an even bigger one”. Not at all, I replied. Our legal system is one of the very best, and most envied, things about the country. But the government? That, at times, is an ass. When ministers lazily rely on old laws to govern entirely new situations, a legal fog descends. After my own misadventure, I can testify to the existence of sensible and detailed rules on mobile phone use. Is it really too much to ask the government to share them with us?