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Motorist filming road traffic accident wins appeal

A motorist who was found guilty of using a mobile phone to film the aftermath of a road traffic accident from behind the wheel of his VW Caravelle has had his conviction quashed following an appeal.

On 19th August 2017, Ramsey Barreto was caught using his phone while driving past a crash scene in Ruislip, west London, and was subsequently found guilty of a contravention of section 41D of the Road Traffic Act 1998 and regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986. Mr Barreto has since had his conviction overturned on appeal at the Crown Court on October 2018 after arguing he was not ‘using’ the device for ‘external communication’.

It was submitted that regulation 110, ‘only’ prohibits motorists using their mobile phone if the device is held at some point “during the course of making or receiving a call or performing any other interactive communication function”.

Interactive communication includes the following:

  • Sending or receiving oral or written messages
  • Sending or receiving facsimile documents
  • Sending or receiving still or moving images; and
  • Providing access to the internet

A previous decision - R v Nader Eldarf – was also brought forward to the court concerning a motorist who was found guilty of using his phone while driving as he used his thumb to change the music. The appeal court had ruled that using his thumb did not constitute using a phone within the meaning of regulation 110 and Section 41D as there was no external communication performed and therefore, the conviction was overturned.

Adopting the same reasoning in R v Nader Eldarf, the Crown Court at Isleworth concluded that Mr Barreto’s use of his phone to make a video was a ‘different type of function’ and did not fall within the scope of the charged conviction.

A High Court judgment at the end of last month upheld the decision, as the judge concluded:

“The legislation does not prohibit all use of a mobile phone held while driving. It prohibits driving while using a mobile phone or other device for calls and other interactive communication (and holding it at some stage during that process).”

However, Lady Thirwall warned this successful appeal does not condone other motorists to use their phone for filming while behind the wheel. Lady Thirwall explained that driving and using a mobile phone to film or take pictures may, instead, be ‘cogent evidence’ of both careless and dangerous driving.

The current penalty for driving while using a hand-held mobile phone in Scotland is six points on the motorist’s licence and a fine of up to a maximum £1,000.

Contact our Mobile Phone Road Traffic Lawyers Glasgow, Scotland

Whether you have been caught using your mobile phone while driving, drink driving, or driving without insurance, it is imperative you speak with a qualified road traffic defence lawyer who can provide you with expert legal advice and robust representation. Contact Keith J Tuck Solicitors today via the online enquiry form.

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