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Game of Phones: When is using a mobile not using a mobile?

The recent case of DPP v Barreto

A modern mobile is capable of way more than making calls and most of us never leave home without it.  While many motorists are aware that using a mobile phone whilst driving has been an offence since 2003, the temptation to send and read messages, make calls and use other phone functions continues to earn some motorists a £200 fine and 6 penalty points.

The case of Mr Barreto

In the recent case of DPP v Barreto [2019] EWHC 2044, Mr Baretto used his mobile phone to film an accident  while driving past the scene.  He was prosecuted for using his mobile phone whilst driving and convicted in the Magistrates Court. 

Mr Barreto appealed, and the decision of the Crown Court to quash the conviction was appealed by the Director of Public Prosecutions to the Court of Appeal.  The question for the Court of Appeal was whether Mr Baretto’s use of his mobile phone for filming was an offence under Section 41D of the Road Traffic Act 1988. 

Regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986 prohibits a person from driving a motor vehicle on a road if the driver is using a held-hand mobile telephone or a hand-held device.

It is an offence under Section 41D(b) of the Road Traffic Act 1988 to contravene Regulation 110. The wording of section 41(1)(b) refers to the use of a “hand-held mobile telephone” or “other hand-held interactive communication device”.

The Prosecution said that the regulation prohibits all use of a mobile phone whilst driving. Mr Barreto said the regulations are directed only to the use of phones for the purposes of communication.

The Crown Court decided that because Mr Barreto was not using his mobile phone for any external communication purposes he was not committing an offence under Road Traffic Act 1988.  Another case R v Nader Eldarf decided in 2018 had reached a similar conclusion when the driver was prosecuted for using a hand-held mobile phone for changing music while driving. 

The Court of Appeal agreed, in a judgement released on 31 July 2019.  It concluded that S41D does not prohibit all use of a mobile phone whilst driving.  It prohibits driving while using a mobile phone for calls and other interactive communications and holding it at some stage during the process.

It is an interesting outcome, that where there is no element of external communications no offence is committed under S41D. It is widely recognised that mobile phones are a distraction whilst driving and the legislation is aimed at reducing distractions or behaviours which impact on road safety.  This legislation was made when phones were primarily used for calls and texts and may not have kept pace with technological advances.

Health and Safety

Does the outcome of this case have any impact on health and safety considerations?  The Health and Safety at Work etc Act 1974 requires employers to take appropriate steps to ensure the health and safety of their employees and others who may be affected by their activities when at work.   Where employees drive for work, this obligation extends to road users and employees alike. 

There will always be risks associated with driving and although these cannot be completely controlled, an employer has a responsibility to take all reasonable steps.  Most employers have policies which prohibit the use of handheld mobile telephones and other devices whilst driving.  Some employers have extended their policies to include a ban on hands-free communications as well.

The use of a hand held phone for controlling music and filming, whilst not currently an offence, is likely to be a distraction which puts employees and members of the public at risk.  This extends  beyond road users to those operating machinery on private land.  Many think that this risk can only be appropriately managed by a ban on the use of hand held mobile phones and similar devices for all activities.   

Employers should check that their health and safety policies are wide enough to cover such usage, including filming and music functions on handheld phones.  An interesting point (for another day) is whether using the phone for navigation is an external communication or not.  


We now expect immediacy in our lives.  We can search the internet for immediate answers, shop online whenever we like, post on social media, carry out bank transfers as well as reach people by phone at any time of the day.  We have become a society which is wedded to its phone and most of us struggle to leave it alone when it dings, pings or flashes. 

This dependency on our phones will sometimes lead employees to use them whilst driving.  The challenge for employers is to promote a culture of safety which helps employees overcome the temptation to use their phone when it is not safe to do so.  It’s clear to me that this is still a work in progress for many organisations. 

About the Author

Craig Burman


Craig advises on contentious and non-contentious environmental, health and safety and regulatory matters. …

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