On 1 March 2017, The Road Traffic Offenders Act 1988 (Penalty Points) (Amendment) Order 2017 came into force. A significant and prevalent change, is the increase in the obligatory endorsement of the number of penalty points imposed for the offence of driving whilst ‘using’ a hand held mobile phone or other interactive communication device. As a result, from 1 March 2017 any motorist committing such an offence will have their driving licence endorsed with 6 penalty points (opposed to 3 penalty points). Similarly, the ‘on-the-spot’ fine for the offence has increased from £100 to £200. The change in law does not have a retrospective effect. Therefore, offences committed before 1 March 2017 will be dealt with in accordance with the previous regime.
This means that driving whilst using a mobile phone now carries with it similar sanctions to those offences of driving whilst disqualified, without due care and attention, and without insurance. It is self-evident that the increase is being met with a concerted effort by the police in the county to “crack-down” on the offence. On the day of the increase coming into force, it is reported that 13 motorists were stopped by police in Norfolk alleged of such an offence and issued with fixed penalty notice accordingly.
The changes will invariably have a significant effect on all motorists. Most notably, newly qualified drivers namely those that have passed their driving test within a period of two years (‘probationary period’) who are convicted of such an offence (in such period) will face having their driving licence revoked as a result. However, those motorists beyond such a ‘probationary period’ will also be wary of the changes in view of the implications under the ‘totting-up’ provisions.
Section 35 of the Road Traffic Offenders Act 1988 specifies that any such driver who accumulates 12 or more penalty points in a three year period is liable to a driving disqualification for a minimum period of six months. Such a disqualification can be reduced or avoided if the court is satisfied, having regard to all the circumstances, that there are grounds for mitigating the normal consequences of the conviction. ‘Exceptional hardship’ is one of the grounds for mitigating the normal consequences of the conviction. There is no definitive definition of such term in law. However, it widely recognised that for hardship to be ‘exceptional’ it must be more than is normally suffered as a consequence of a disqualification. The onus and burden of proof in demonstrating such grounds is upon the motorist concerned.
Motorists should also consider that a conviction for the offence is likely to result in an increase in motor insurance premiums. Statistics reveal that in Norfolk and Suffolk alone between January to September 2016 there were in excess of 6,000 motorists that were caught for the offence.
Holding a phone or device itself has been successfully argued before the Courts to not fall within the definition of ‘using’, and therefore not a direct breach of the legislation itself. However, the Courts are likely to consider the purpose of the legislation, namely to ensure drivers are not distracted and able to use both hands whilst driving. However, the offence will apply to the ‘use’ of any “handheld device”, arguably capable of transmitting a signal or interaction, meaning motorists may be charged for inputting a destination on a navigation device or selecting a song on a music player whilst at the wheel.
As a result of a wide campaign to prevent motorists from operating their mobiles whilst driving, many new Apple and Android devices are now being installed with a “driving mode”, whereby the screen is dimmed and notifications are temporarily blocked. Making use of this feature may be something to be considered by those drivers who are faced with such distractions.