The government has finally announced imminent changes to the law surrounding driving whilst using a mobile phone. New regulations coming into force in 2022 will prohibit nearly all use of a mobile phone whilst behind the wheel.

But what will this mean for professional drivers and what will/will not be allowed with the new regulations?

There have been growing calls for a change in the law for several years.

When the law was first introduced in 2003, four years before the first widely available smart phones, all they could really do was send or receive messages and make and receive calls. Very few phones could access the Internet and even cameras were still an emerging technology. They were a far cry from the phones we know today that can do everything from watching movies to scheduling an entire working day.

The law that was created to prohibit their use was done so based on simplified technology that is quite obviously out of date today.

But the matter was not helped by overly complicated legislation. The law, as it still stands today, states that it is an offence to use a handheld telephone whilst driving. Simple enough.

However, the legislation continues that “a phone is to be treated as handheld if it is or must be held during the course of performing an interactive communication function…” which is then defined as making or receiving a telephone call, sending or receiving a message or a fax, or accessing the Internet.

In our view, the language of the legislation is unnecessarily complicated, and the wording: “is to be treated as handheld if it is or must be held during the course” is not clear and has been left open to interpretation.

Some police forces and courts would define the legislation as prohibiting any use of a phone at all if it was handheld, others would define it as prohibiting only interactive communication functions, and some would even read it as prohibiting ALL use of phones, whether hands free or not. This uncertainty plagued the courts for years.

With the increase in smart phones and their functionality, something had to change. The most appropriate method would have been to clarify the law, to change it completely, or to set further regulations prohibiting certain usage.

However, in 2017 the government decided instead to take a different approach by doubling the sentence from three penalty points to six, and the standard fine from £100 to £200. Whilst this did discourage a lot of people from using their phone whilst driving, it didn’t make any headway in clarifying the law.

That was until the case of DPP v Barreto in 2019. Mr Barreto was seen behind the wheel filming an accident. He was prosecuted for driving whilst using a mobile phone and was found not guilty on appeal.

The prosecution appealed further to the High Court – where it was held that the legislation only covered use of a phone whilst it was held in the hand, and only whilst it was being used for a communication function (and not, for example, taking a photograph or playing a game). This was widely reported as a ‘legal loophole’, but this was far from the truth.

It was our argument (we were the defence lawyers in the case) that the legislation was unfit for purpose. If they found Mr Barreto guilty it would still leave this complicated legislation out there, with no definition of a mobile phone, what can be done with it or whether drivers can use it on hands free.

It would also prohibit any use at all so would fail to keep up with emerging technologies. The Court agreed that our interpretation was correct, and that parliament only ever meant to ban communication functions because clearly that’s all phones could do at the time.

From then the legislation has gone back to Parliament to be changed, which has what has now happened.

The exact wording has not yet been released, but it has been specifically stated on the GOV.UK website what it will cover:

• The new law will prohibit nearly all use of handheld phones.

• There will be exemptions for making a contactless payment.

• Drivers will still be able to use a device hands-free (if that use does not cause a drop in the standard of driving, as that may be considered driving without due care and attention).

• The law will cover mobile telephones and any device that can perform communication functions, but not two-way radios.

Holding and using any mobile telephone or PDA device whilst driving, anything that can send or receive messages or access the Internet, will be an offence.

The law will remain that the vehicle does not necessarily need to be in motion for an offence to be committed. Even being stationary at a red light or in traffic will be considered “driving” for the purposes of the legislation.

There will be an exemption for using a two-way radio. Likewise, there will be an exemption for using a phone to make a contactless payment. There may well be more exemptions as technologies progress.

The law will however allow use of a phone in a hands-free cradle, but only to an extent. Whilst using a phone in a cradle hasn’t been strictly prohibited, the government has taken measures to explain that drivers will still be responsible for the standard of their driving and if it falls below that of a careful and competent driver they could be prosecuted for driving without due care and attention, or even dangerous driving.

Our advice is simple – put phones away. For professional drivers who need to use such devices to work, make sure they are in a hands-free kit and wherever possible make sure that you are stationary with the handbrake on whilst using them to ensure there is no drop in the standard of driving.

When positioning them on the windscreen make sure they are out of the way and not blocking your view of the traffic ahead or any mirrors.

There is no specific date for when the legislation will come into force. However, we do know that it will be early 2022.

When it does, it will not not have retrospective effect. This means if somebody is caught, for example, taking a photo whilst driving in February and the law comes into force in March, that person could not be found guilty due to the change.

The law would take effect for all cases committed on or after the date it comes into force.

No. The current sentence for driving whilst using a mobile telephone is six points with a £200 fine if you are offered a fixed penalty, or six points or a discretionary disqualification together with a maximum £1,000 fine at court.

If the police believe that the hands-free kit is blocking your view of the traffic ahead, or perhaps caused you not to have full control of the vehicle, that is an offence called ‘driving whilst not in proper control’ and carries three points.

If using the phone causes a drop in the standard of driving that can be an offence of driving without due care and attention which carries between three to nine penalty points or a disqualification, or more seriously if they consider the drop in the standard of driving is far below that of a careful and competent driver, then there could be a charge of dangerous driving which carries a minimum 12-month disqualification, an extended retest at the end of it and community orders/prison in the most

serious cases.