The High Court in Director of Public Prosecutions -v- Ramsey Barreto [2019] EWHC 2044 (Admin) have confirmed using a mobile phone for filming or taking photographs is not in contravention of Section 41D of the Road Traffic Act 1988 and Regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986.

In DPP v Ramsey the Respondent was seen to be using his phone to film a crash as he drove past it in slow moving traffic in North London in August 2017. When he was stopped by the police, his phone was in his lap, still in video mode.

Mr Barreto was convicted of driving while using a hand-held mobile phone under s.41D of the Road Traffic Act and the Road Vehicles Regulations after a magistrates' court trial. The conviction was overturned on appeal at Isleworth Crown Court in October last year and as a result the Director of Public Prosecutions (DPP) launched a legal challenge.

The most recent judgment includes some interesting discussion of the aims and current interpretations of the legislation, ultimately concluding that all mobile phone use when driving is not prohibited. “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)”.

Lady Justice Thirwall was keen to emphasise that “it should not be thought that this is a green light for people to make films as they drive” as “driving while filming events or taking photographs whether with a separate camera or with the camera on a phone, may be cogent evidence of careless driving, and possibly dangerous driving”.

This is another example of how clumsily drafted legislation, redrafted in 2003 as an attempt to prevent people using mobile phones to call and text while driving, is no longer fit for purpose as technology moves on so fast. At the time it was drafted the smartphone was not prevalent in the same way that it is now and few devices were capable of taking photos or videos the way that they are now.

It is now expected that parliament will review the legislation, whilst thousands of others convicted of driving whilst using a mobile phone could consider whether to challenge their convictions. As LJ Thirwall notes, “The dangers of this are plain. Whether a review of the regulations is necessary to take account of the myriad current and potentially dangerous uses of a mobile phone or other device while driving is a matter for Parliament, not the courts”.