Filmed by cyclist touching a device

DanDare999

user1977 said:

TooManyPoints said:

Do you physically need to be holding it or is using it while not in a cradle enough?

"Using" is not defined and it would be a matter for the court to decide. It is quite clear from the examples given of "using" that virtually any interaction with a hand-held device can be determined as using. There is no case law on this as far as I am aware (the revised legislation is only six months old) and a Magistrates' Court will make its own decision based on the evidence they have. One thing they may ask themselves is, if the phone was not being "used" for any purpose, why was it being touched?

The point is that the thing you're using needs to be a 

"(a) a hand-held mobile telephone; or

(b) a hand-held device of a kind specified in paragraph (4) [two-way radios and the like]"

in order to be caught by the legislation, and I quoted the definition of "hand-held" back on page 1. You need to be holding it. The recent change only adds to the types of things you're not allowed to do with the hand-held device.

Do you have a source to support that? It's handheld by design so using it is an offence. It ceases to be handheld when placed in a device that substitutes the hand. Nowhere does it state you need to be holding it. 

TooManyPoints

You need to be holding it. 

Your own definition on page one shows that is not the case:

a mobile telephone or other device is to be treated as hand-held if it is, or must be, held at some point during the course of making or receiving a call...

It does not have to be held to make out the offence. It simply must be of a design that it must be held at some point.in order to make a call. If it had to be held a driver could place it on the passenger seat or some other convenient surface within reach, operate it so as to make a call and speak once connected - clearly not legal.

It's all by the way because there are too many things we do not know to be able to realistically assist with the OP's decision. We don't know:

• Whether the device was hand-held or not;
• Whether or not it was in a cradle;
• If it wasn't, where it was in the vehicle;
• Why it was being touched;
• Whether the defendant was driving at the time.

The court has to find that it was a hand-held device and that it was being used whilst the defendant was driving. So they will want to know the answers to all those questions. Unless the prosecution provides those answers so that the court can be sure, they cannot convict.

Grumpy_chap

DanDare999 said:

user1977 said:

TooManyPoints said:

Do you physically need to be holding it or is using it while not in a cradle enough?

"Using" is not defined and it would be a matter for the court to decide. It is quite clear from the examples given of "using" that virtually any interaction with a hand-held device can be determined as using. There is no case law on this as far as I am aware (the revised legislation is only six months old) and a Magistrates' Court will make its own decision based on the evidence they have. One thing they may ask themselves is, if the phone was not being "used" for any purpose, why was it being touched?

The point is that the thing you're using needs to be a 

"(a) a hand-held mobile telephone; or

(b) a hand-held device of a kind specified in paragraph (4) [two-way radios and the like]"

in order to be caught by the legislation, and I quoted the definition of "hand-held" back on page 1. You need to be holding it. The recent change only adds to the types of things you're not allowed to do with the hand-held device.

Do you have a source to support that? It's handheld by design so using it is an offence. It ceases to be handheld when placed in a device that substitutes the hand. Nowhere does it state you need to be holding it. 

How would being in a cradle be any different to using Android Auto to show the phone screen on the car stereo screen which is then operating functions by touching the screen?

Petriix

The government guidance is very clear:

You can use devices with hands-free access, as long as you do not hold them at any time during usage. Hands-free access means using, for example:

• a Bluetooth headset

• voice command

• a dashboard holder or mat

• a windscreen mount

• a built-in sat nav

There is no ambiguity. Please stop claiming that it's an offence to touch a mobile phone while driving. 

Please do note the further guidance on the same page which clarifies that you can be stopped and prosecuted if distracted by a device, even if using it otherwise legally in accordance with the above. 

user1977

TooManyPoints said:

You need to be holding it. 

Your own definition on page one shows that is not the case:

a mobile telephone or other device is to be treated as hand-held if it is, or must be, held at some point during the course of making or receiving a call...

It does not have to be held to make out the offence. It simply must be of a design that it must be held at some point.in order to make a call.

Yes, if it was of such a design then it would be deemed to be a hand-held device. But I'm struggling to think of any likely type of mobile phone to which that would apply.

DanDare999

Grumpy_chap said:

DanDare999 said:

user1977 said:

TooManyPoints said:

Do you physically need to be holding it or is using it while not in a cradle enough?

"Using" is not defined and it would be a matter for the court to decide. It is quite clear from the examples given of "using" that virtually any interaction with a hand-held device can be determined as using. There is no case law on this as far as I am aware (the revised legislation is only six months old) and a Magistrates' Court will make its own decision based on the evidence they have. One thing they may ask themselves is, if the phone was not being "used" for any purpose, why was it being touched?

The point is that the thing you're using needs to be a 

"(a) a hand-held mobile telephone; or

(b) a hand-held device of a kind specified in paragraph (4) [two-way radios and the like]"

in order to be caught by the legislation, and I quoted the definition of "hand-held" back on page 1. You need to be holding it. The recent change only adds to the types of things you're not allowed to do with the hand-held device.

Do you have a source to support that? It's handheld by design so using it is an offence. It ceases to be handheld when placed in a device that substitutes the hand. Nowhere does it state you need to be holding it. 

How would being in a cradle be any different to using Android Auto to show the phone screen on the car stereo screen which is then operating functions by touching the screen?

Because it wouldn't be handled. 

DanDare999

Petriix said:

The government guidance is very clear:

You can use devices with hands-free access, as long as you do not hold them at any time during usage. Hands-free access means using, for example:

• a Bluetooth headset

• voice command

• a dashboard holder or mat

• a windscreen mount

• a built-in sat nav

There is no ambiguity. Please stop claiming that it's an offence to touch a mobile phone while driving. 

Please do note the further guidance on the same page which clarifies that you can be stopped and prosecuted if distracted by a device, even if using it otherwise legally in accordance with the above. 

Government guidance isn't legislation. 

user1977

DanDare999 said:

user1977 said:

TooManyPoints said:

Do you physically need to be holding it or is using it while not in a cradle enough?

"Using" is not defined and it would be a matter for the court to decide. It is quite clear from the examples given of "using" that virtually any interaction with a hand-held device can be determined as using. There is no case law on this as far as I am aware (the revised legislation is only six months old) and a Magistrates' Court will make its own decision based on the evidence they have. One thing they may ask themselves is, if the phone was not being "used" for any purpose, why was it being touched?

The point is that the thing you're using needs to be a 

"(a) a hand-held mobile telephone; or

(b) a hand-held device of a kind specified in paragraph (4) [two-way radios and the like]"

in order to be caught by the legislation, and I quoted the definition of "hand-held" back on page 1. You need to be holding it. The recent change only adds to the types of things you're not allowed to do with the hand-held device.

Do you have a source to support that? It's handheld by design so using it is an offence. It ceases to be handheld when placed in a device that substitutes the hand. Nowhere does it state you need to be holding it. 

The (original) regulations are here:

https://www.legislation.gov.uk/uksi/2003/2695/regulation/2/made

Para 110(6)(a) is the bit which defines what "hand-held" means - that was amended by the 2022 regulations referred to above (i.e. https://www.legislation.gov.uk/uksi/2022/81/regulation/3/made ) so that the definition is now

"a mobile telephone or other device is to be treated as hand-held if it is, or must be, held at some point while being used;"

TooManyPoints

But I'm struggling to think of any likely type of mobile phone to which that would apply.

A phone without a cradle meets that definition, surely. Or are you saying that because it could be operated (say, by placing it on a table - or the passenger seat) it does not qualify? As I said, that being the case, a driver could make a call with the phone on, say, the passenger seat, and not be guilty of the offence. Clearly that is nonsensical.

Please stop claiming that it's an offence to touch a mobile phone while driving.

I'm not doing that. It is an offence to use a hand-held mobile phone whilst driving. It is for a court to decide whether the touching amounts to "using".

DanDare999

user1977 said:

DanDare999 said:

user1977 said:

TooManyPoints said:

Do you physically need to be holding it or is using it while not in a cradle enough?

"Using" is not defined and it would be a matter for the court to decide. It is quite clear from the examples given of "using" that virtually any interaction with a hand-held device can be determined as using. There is no case law on this as far as I am aware (the revised legislation is only six months old) and a Magistrates' Court will make its own decision based on the evidence they have. One thing they may ask themselves is, if the phone was not being "used" for any purpose, why was it being touched?

The point is that the thing you're using needs to be a 

"(a) a hand-held mobile telephone; or

(b) a hand-held device of a kind specified in paragraph (4) [two-way radios and the like]"

in order to be caught by the legislation, and I quoted the definition of "hand-held" back on page 1. You need to be holding it. The recent change only adds to the types of things you're not allowed to do with the hand-held device.

Do you have a source to support that? It's handheld by design so using it is an offence. It ceases to be handheld when placed in a device that substitutes the hand. Nowhere does it state you need to be holding it. 

The (original) regulations are here:

https://www.legislation.gov.uk/uksi/2003/2695/regulation/2/made

Para 110(6)(a) is the bit which defines what "hand-held" means - that was amended by the 2022 regulations referred to above (i.e. https://www.legislation.gov.uk/uksi/2022/81/regulation/3/made ) so that the definition is now

"a mobile telephone or other device is to be treated as hand-held if it is, or must be, held at some point while being used;"

I can use my phone without holding it, on speaker on my knee. Is that ok to use it when driving?

I therefore am also free to use it on the passenger seat as long as I don't hold it?