It is both very stupid and a criminal offence to drive whilst using a hand-held mobile phone. The reason is obvious: it is distracting and dangerous.
Barreto was charged with 'driving a motor vehicle while using a hand-held mobile telephone.' It seemed a clear case, deserving, if anything, of heavier punishment than if he had been making a phone call: the act of filming would inevitably have taken his eyes off the road.
Mr Barreto’s first line of defence was that it wasn’t him but his son in the passenger seat that had been using his phone. That failed because the magistrates did not believe him.
He then deployed what has come to be known in legal circles as the 'Jimmy Carr defence', after the tax-avoiding 'comedian' avoided conviction by arguing that dictating a joke into his iPhone while driving was not 'using' it. Likewise, Mr Barreto said using his phone as a camera was not 'using' it for the purposes of the regulations.
To the man idly flicking through social media on the upper-floor of the Ruislip omnibus such an argument might seem rather abstruse, not to say ridiculous. The magistrates certainly thought so. The Crown Court was equally sceptical about Barreto’s account, but agreed with his brilliant young barrister, Jyoti Wood, that when the law said 'using', it didn’t mean 'using to film.'
When Jimmy Carr won his case the CPS didn't bother to appeal, perhaps fearing that if they lost an unfortunate precedent would be set. With Ramsey Barreto however, they threw everything at an appeal, instructing one of the country’s leading QCs to argue that 'using' means what 'using' usually means.
They lost, and an unfortunate precedent has now been set.
After considerable rumination – entirely forgivable because one of the judges was Mr Justice Goss who spent most of the last 8 weeks presiding over the trial of Carl Beech in Newcastle – the Administrative Court yesterday decided that Ms Wood's arguments were correct. The regulations refer to using:
'a hand-held mobile telephone or other hand-held interactive communication device.'
The word 'other,' the judges decided, works to confine the meaning of 'using' to phones being used 'for an interactive communication' function. As long as the film was being recorded rather than transmitted or uploaded onto the internet, there was no such function, so Mr Barreto was in the clear.
One would have hoped that the ruling might have brought clarity to the law. Sadly the regulations are so poorly drafted and so out of date, that it has done no such thing. Filming or taking photographs, we now know, is not 'using' a phone, unless the film is transmitted. Fiddling with a phone to play recorded music is not 'using' a phone, although doing so to play streamed music may well be. I have no idea whether using a hand-held phone as a SatNav is legal or not. And what about writing or reading a text message? Is that an 'interactive communication function' or does it only become one, to use the judges’ phrase, 'during the nano-second of the transmitting or receipt of data?' As Lady Justice Thirlwall put it 'since these issues do not arise in this case I say no more about them,' which is a judicial way of saying 'I haven’t got a clue either'.
Whilst the case certainly does not preclude drivers being charged with careless or dangerous driving for using their phones (in fact it now makes such charges more likely), it does demonstrate that the specific laws used to charge Jimmy Carr and Mr Barreto are now, in some cases at least, all but impossible to use. Any use of a hand-held electronic device while driving is potentially dangerous and should be clearly banned. The current law allows some, but not all such usage, and does so on no rational basis whatever. It manages to be arbitrary, inconsistent, incomprehensible, unpredictable, and unworkable.
Grant Shapps, the new Secretary of State for Transport needs to sort this out urgently.
Matthew Scott is a criminal barrister at Pump Court Chambers.