4Legislative reform
14.We noted above that there are a range of activities that can distract a driver to a greater or lesser extent. The job of the Government is to identify what activities are safe, and what activities should be proscribed. Making these decisions should obviously be informed by evidence of the risks involved, but we have heard that the way in which the law defines the offence of driving while using a hand-held mobile phone or other device means that it excludes activities that are just as risky as those covered by the legislation.
15.At present a driver only commits the offence of driving while using a mobile phone if it is hand-held and sending or receiving data. We have been told that this excludes several activities that create the same risks as those covered by the offence, and the law should be expanded to cover these. Dr Gemma Briggs told us there were “certainly some gaps in the current legislation”,25 and Nick Lyes told us that, as a consequence of the way the law defined using a mobile phone or other device:
If you are making a video and you do not use it for any interactive function, such as putting it on social media or sending it to a friend, under the law I believe that could come under driving without due care and attention, which of course has a lesser penalty than the six points and the £200 fine.”26
Dr Shaun Helman told us that this was “completely out of line with what the evidence tells us about the relative distraction that would be involved in those tasks.”27 He went on to say: “Whether the phone is sending data or not has no bearing on how distracted you are as a driver”.
16.The current offence applies only to hand-held use. Hands-free devices are not covered. Dr Gemma Briggs and Dr Graham Hole are concerned that “by implication [the law] advocates that hands-free phone use is a safe alternative for drivers wishing to use their phones”.28 We have been told that this does not reflect the risks of using a hands-free device while driving. Dr Shaun Helman told us that “We have shown time and again that even a hands-free conversation will interfere […] and you will be slower to respond”.29 While not contradicting the risks of driving while using a hands-free mobile phone, Nick Lyes from the RAC sounded a word of caution about a ban:
The difficulty with making hands-free illegal is that there are so many fundamental logistics around it that need to be looked at. How would companies interact with their staff, particularly if they were doing deliveries, or if they were taxi companies, for example? How would you necessarily enforce it without the technology that could pick up the call that was taking place? There are a lot of complexities around so-called banning of hands-free. It also has to be done with consideration of other distractions within the vehicle.30
Dr Gemma Briggs agreed that there were complexities to deal with if there was an outright ban on any phone use while driving, but said: “just because something is difficult does not mean that we should not do it”.31 Others—such as Brake and the Royal Society for the Prevention of Accidents—have supported the call for using a hands-free mobile phone while driving to be made a road traffic offence.32
17.We noted above that when the Government announced in 2003 that it would proceed with a new offence of driving while using a mobile phone it stated that “the Department considers that drivers should not use hands-free phones”, but did not include hands-free phones within the offence due to enforcement difficulties.33 More recently, in response to a May 2019 parliamentary question about whether it had assessed the risk of using hands-free or other devices while driving, the Parliamentary Under-Secretary of State for Transport, Baroness Vere of Norbiton, said:
The Department for Transport has not carried out an assessment of hands-free mobile phone use, or use of other mobile devices such as satellite navigation equipment, while driving. […] If someone drives poorly because they are distracted by a phone conversation, for example, even if using hands-free, then the police can take enforcement action for failing to have proper control of the vehicle.34
18.The legislation defining the offence of using of a hand-held mobile phone or other device while driving was drafted in 2003 and excludes activities that are known to create precisely the same risks as those covered by the legislation. There are other offences with which drivers using a mobile phone or other device while driving can—depending on the circumstances—be charged, and the authorities therefore have some discretion about what action to take in relation to an offence being committed. However, the evidence is clear that using a hand-held mobile phone, whether for a communicative purpose or not, is dangerous, and it therefore does not make sense for legislation to distinguish between these things. We recommend that the Government redefine the offence of driving while using a mobile phone or other device so that it covers all hand-held usage, irrespective of whether this involves sending or receiving data.
19.The law currently only proscribes using a hand-held mobile phone or other device while driving. A hands-free device can be used lawfully, creating the misleading impression that hands-free use is safe. The evidence shows that using a hands-free device creates the same risks of a collision as using a hand-held device, and it is therefore inappropriate for the law to condone it by omission. While we accept that there would be practical challenges to criminalising hands-free devices and enforcing this offence, we agree with Dr Gemma Briggs that just because something is difficult this does not mean that we should not do it. We therefore recommend that the Government explore options for extending the ban on driving while using a hand-held mobile phone or other device to hands-free devices. This should consider the evidence of the risks involved, the consequences of a ban, and the practicalities of enforcing it. The Government should publish a public consultation along these lines by the end of 2019.
Penalties for driving while using a mobile phone
20.The Fixed Penalty for driving while using a hand-held mobile phone was increased from 3 penalty points and a £100 fine to 6 penalty points and a £200 fine in March 2017.35 It has been suggested that this is an insufficient deterrent. Just over a third of respondents to the Government’s 2016 consultation on increasing the penalty suggested higher fines (ranging from £250 up to £10,000), more penalty points or outright driving bans.36 Many respondents to that consultation felt that points were a far more effective deterrent or punishment than fines.
21.The Government’s 2016 consultation also received responses highlighting the inconsistency between the risks of using a mobile phone—as being more detrimental to driving ability than low-end alcohol or drug toxicity—and the relatively lower penalties for mobile phone use. We noted above that driver impairment resulting from alcohol is a persistent state for the whole journey, while a driver using a mobile phone is only impaired while they are using their phone and for around five minutes after a driver has ended a phone conversation.37 Nick Lyes, from the RAC, told us that when penalties increased in 2017 there was some change to behaviour, but that their most recent research showed that “bad habits were creeping back in”.38 This indicates that the publicity around the increased penalties drove a change in behaviour, but this was not sustained when people realised they were unlikely to be caught.
22.Increasing the penalties for driving while using a mobile phone in 2017 appears to have changed behaviour in the short-term, but there is already evidence that bad habits are creeping back in. Higher penalties are clearly not a panacea to the problem of motorists driving while using a mobile phone, but penalties are a good way for the Government to signal the seriousness of an offence. Our evidence indicates that the penalties for using a hand-held mobile phone while driving do not appear to be commensurate with the risk created. We recommend that the Government assess and report on the effectiveness of the 2017 increase in penalties for driving while using a mobile phone. This should review the current penalties that apply to this offence and consider whether they should be increased to better reflect the serious risks created by drivers committing this offence and make clear to offenders that there are serious consequences to being caught.
32 Dr Helen Wells (RSA0032) para 3.4, Brake, Ask your MP to help stamp out driver distraction, accessed June 2019, The Royal Society for the Prevention of Accidents (RSA0080)
33 Department for Transport, Mobile phones and driving: decision letter and summary of responses, 24 June 2003
34 PQ HL15339 [on Road Traffic Offences: Mobile Phones], 8 May 2019
35 The Road Traffic Offenders Act 1988 (Penalty Points) (Amendment) Order 2017 and The Fixed Penalty (Amendment) Order 2017; as set out in Chapter 2, the maximum available penalty for this offence, in court, is a £1,000 fine and a disqualification.
36 Department for Transport, A consultation on changes to the Fixed Penalty Notice and penalty points for the use of a hand-held mobile phone whilst driving: Response to Consultation, November 2016
Published: 13 August 2019