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Road Traffic - Summary Offences

3 April 2020: updated 6 September 2023; 22 May 2024|Legal Guidance

Principles

This guidance is provided to provide an overview of road traffic practice and procedure for summary offences, as distinct from two other pieces of road traffic guidance, namely:

Procedure

Defendants producing documents for court

Motorists are required to produce their documents to a police officer on demand or at a nominated police station within 7 days. Where a summons is issued for failure to produce, the defendant may attempt to produce his documents at court. Production of driving documents at the police station in the first instance must be encouraged.

CPS staff, agents or court staff should not ordinarily inspect or verify driving documents. The duty to determine whether any documents produced are valid does not pass to any other agency where a motorist fails to produce the required documents, therefore local arrangements should be agreed for the most effective method for the documents' validation by the police before the court proceeds. If necessary, the case should be adjourned for validation to be carried out by the police. It is a matter for police investigation.

Very exceptionally, a prosecutor may feel it appropriate to verify documents, but:

  • such proceedings must be properly recorded and the police informed
  • no action should be taken or departure from the standard procedure made where this might prejudice the future interest of any victim
  • Prosecutors must be alive to the sophistication of fraudulently produced material

Specified Proceedings

The term 'specified proceedings' refers to a limited range of summary offences for which criminal proceedings may be instituted and conducted by the police.

The Schedule to the Prosecution of Offences Act 1985 (Specified Proceedings) Order 1999 (as amended) sets out the list of applicable offences. Specified proceedings remain the responsibility of the police and do not form part of the CPS caseload until a ‘not guilty’ plea has been entered.

Notice of Intended Prosecution

Section 1 Road Traffic Offenders Act 1988 ['RTOA 1988'] provides that a defendant cannot be convicted of certain road traffic offences set out in schedule 1 RTOA 1988 unless they have been warned that the question of prosecution would be considered. Such a warning is normally known as a "notice of intended prosecution", or NIP.

A notice of intended prosecution can be given:

  • either orally or in writing at the time the offence was committed. The warning need not be specific but must refer to one or more of the offences to which section 1 RTOA 1988 applies. Whether a warning was given "at the time" is a question of degree. The High Court will not interfere with a Magistrates' Court finding on that point if there is evidence to support it.
  • by serving the defendant with a postal charge requisition (‘PCR’) or single justice procedure (‘SJP’) notice within 14 days of the offence; or
  • by sending within 14 days of the alleged offence a notice indicating the possibility of prosecution. The notice must specify the nature of the alleged offence and the time and place where it is alleged to have been committed, and must be sent to the driver, registered keeper of the vehicle, or rider of the cycle.

Section 2 RTOA 1988 provides that the prosecution does not have to comply with section 1 RTOA 1988 if, owing to the presence on a road of a vehicle in respect of which the offence was committed, an accident occurred at the time of the offence or immediately afterwards.

Under section 1(3) RTOA 1988 the requirements of that section are deemed to have been met unless and until the contrary is proved. However, prosecutors should actively check that evidence to confirm compliance with section 1 RTOA 1988 is available (where a relevant offence has been committed), and should ensure such evidence is formally served as part of the prosecution case.

Section 2(3) RTOA 1988 provides that a failure to meet the requirements shall not prevent conviction where the court is satisfied that:

  • it arose because the name and address of the accused or the registered keeper could not with reasonable diligence be ascertained within the statutory time; or
  • the defendant contributed to that failure by his or her own conduct.

See Wilkinson's Road Traffic Offences for commentary regarding Notices of Intended Prosecution.

Common Defence Arguments

Where an NIP has not been served, two arguments are commonly raised:

  1. No accident has occurred so that the absence of a NIP is fatal to the case.

    In establishing whether "an accident occurred at the time of the offence or immediately afterwards", R v Currie [2007] EWCA crim 926 provides:

    • It is for the judge rather than the jury to decide if the facts disclosed "an accident" within the meaning of section 2 RTOA 1988.
    • The onus is on the prosecution to prove to the criminal standard that "an accident" occurred.
    • "Accident" is to be given a common sense meaning, and is not restricted to untoward or unintended consequences having an adverse physical effect.
    • The Court of Appeal judgment notes [at para. 25] that if "the circumstances would have been sufficiently memorable to him for it to be unnecessary to draw them to his attention by serving a notice of intended prosecution", that is sufficient to constitute an accident, because "that, of course, is the underlying reason why a notice is not required where there has been ‘an accident’ within the meaning of the section."

    Provided something sufficiently memorable has occurred in the course of the incident in question, there are grounds for a court to conclude that an accident occurred.

  2. If the suspect is unaware that an accident has occurred, an NIP is still required.

    This argument derives from Bentley v Dickinson [1983] R.T.R. 356, which was decided before section 2 RTOA 1988 came into force. If the issue is raised, prosecutors may be assisted by the following:
     
    • Bentley v Dickinson [1983] R.T.R. 356 involved a minor incident in which the defendant collided with a car parked in the road in the course of reversing his own car out of his driveway, and maintained he was unaware that an accident had occurred. He was not issued with an oral or written warning by the officer who subsequently spoke to him.

      The subsequent Divisional Court judgement in DPP v Pidhajeckyi [1991] R.T.R. 136 distinguished Bentley v Dickinson, describing that accident as ‘so slight and unnoticeable’, that the requirement for a warning within a reasonable period [now in section 1 RTOA 1988] clearly applied so as to enable an offender in such circumstances to gather evidence for their case. Where a more serious incident has occurred, the position is wholly different, as an offender would be more likely to be aware that an accident had occurred.

      Therefore, Bentley v Dickinson should be applied only to cases in which the happening of the accident was unknown at the time when it occurred to the driver: that is, because of the triviality of the accident the driver had no knowledge that an accident had occurred. Furthermore, the Divisional Court was keen to limit the effect of Bentley: “the effect of the decision in Bentley v Dickinson [1983] R.T.R. 356 should be limited to the particular facts that were considered in that case. To widen the effect of the decision to cover the different circumstances arising in this case where, for one reason or another, subsequent to the accident the driver has no recollection of it, would have the effect of ‘driving a coach and horses’ through the present statutory provisions.”
       
    • Where a defendant maintains as part of their defence that they were (subjectively) unaware of the accident, the following points apply:
       
      1. The evidential burden of proving that the suspect / defendant was not aware of the accident shifts to the defendant / suspect (Magee v CPS [2014] EWHC 4089 (Admin)).
      2. Voluntary intoxication resulting in being unable to recall the incident in question is not a valid reason for unawareness (Magee v CPS).
      3. Where a defendant maintains they are unaware of an accident due to a medical condition, the facts of DPP v Pidhajeckyi [1991] R.T.R. 136 may assist. In that case the accident was a serious one, resulting in the driver’s amnesia. It was argued that because he could not recall the accident, he was unaware of it and was therefore entitled to rely upon Bentley. On an appeal by way of case stated, the High Court rejected this proposition. The Court distinguished awareness from recollection. In DPP v Pidjaheckyi, the driver must have been aware of the accident at the time it occurred regardless of whether he could recall it later because the accident was serious and memorable.

Limitation of Time

Section 127 Magistrates Court Act 1980 provides that for all summary offences the information or complaint must be laid within six calendar months of the commission of the offence, except where any other Act expressly provides otherwise. In calculating the limitation period, the day on which the offence was committed is not included.

Exceptions to the Six-Month Time Limit

Statutory exceptions to the 6-month time limit include the examples listed below:

When the exception applies, proceedings must be brought within six months from the date on which sufficient evidence came to the knowledge of the prosecutor to warrant proceedings; but, in any event, proceedings must not be brought more than three years after the commission of the offence.

Under section 6(3) RTOA 1988 a certificate signed by or on behalf of the prosecutor, stating the date on which the necessary evidence came to their knowledge is conclusive evidence of that fact. Such a certificate is deemed under section 6(4) RTOA 1988 to have been so signed unless the contrary is proved. Failure to specify the date will lead to proceedings being terminated: David Burwell v DPP [2009] EWHC 1069 (Admin).

If a Prosecutor is asked to sign a certificate, or to advise the police upon its format, the following example may be adopted. A copy should be provided to all parties and to the court.

Prosecutor's Certificate pursuant to section 6 Road Traffic Offenders Act 1988

To my knowledge on < INSERT DATE >

there was sufficient evidence in my opinion to warrant proceedings against:

< Defendant Name >

of < Defendant Home Address >

for an offence or offences of:

< specify offence(s) >

pursuant to the provisions of section 6 of the Road Traffic Offenders Act 1988.

Dated the [date] day of [month] [year]

Signed: ............................................................................. Crown Prosecutor Police Officer

[delete as appropriate or specify alternative]

Alternative verdicts

Section 24 RTOA 1988 (as amended by the Road Safety Act 2006) allows a court which has returned a verdict of 'not guilty' to certain either way and summary offences, to convict for a specified alternative offence, provided that the content of the charge amounts to an allegation of an alternative offence. Alternative verdicts are permitted in relation to the summary offences of:

Alternative verdicts under sections 4(1), 5(1)(a), 7(6), 4(2), 5(1)(b) or 29 RTA 1988 may be returned as appropriate, despite the fact that the six month time limit for those offences are likely to have lapsed.

It is important to remember, however, that the alternative verdict can only be returned where the jury or magistrates have found the defendant ‘not guilty’ of the substantive charge.

Where no statutory power exists for a Magistrates' Court to convict of an alternative offence of its own motion, a Magistrates' Court has no power to convict of an alternative offence unless that alternative offence has also been formally laid so that it is before the Court. Accordingly, where the prosecution case may establish an alternative offence, it is good practice to ensure that the alternative offence is specifically laid as a direct alternative for trial purposes. The Court may then return a verdict on that offence at trial in the event of an acquittal for the other substantive offence.

Special Reasons

Under section 34(1) RTOA 1988, special reasons may apply where a Court dealing with an offender is required to impose an obligatory disqualification period of at least 12 twelve months. If a Court accepts that special reasons apply, the Court has a discretion to order a defendant to be disqualified for a shorter period, or not to impose a disqualification.

A special reason is one which is special to the facts of a particular offence. It is a mitigating or extenuating circumstance which is directly connected with the commission of the offence and which can properly be taken into consideration by the sentencing court. A circumstance peculiar to the offender, as distinguished from the offence, is not a special reason.

The onus of establishing special reasons lies on the defence, and the standard is that of the balance of probabilities.

The prosecution has a duty to assist the court by ensuring that correct and full information, both in law and fact, is given. Prosecutors should:

Where a defendant raises exceptional hardship as a reason for not being disqualified under the repeated offence provisions of section 35 RTOA 1988 it is appropriate for the prosecutor to question the defendant. This should be done with the approval of the court and in order to assist in determining the question of disqualification.

Definitions

“Road” or “Other Public Place”

“Road” is defined at section 142 of the 1984 as any length of highway or other road to which the public has access and includes bridges over which a road passes.

The expression ‘on a road or other public place’ is employed frequently in road traffic legislation. A public place is a place to which the public, or part thereof, have access. Insurance cover is required for the use of a vehicle on a road or a public place.

The onus is on the prosecution to establish that a particular location is a "road" or a "public place".

Definition of a Motor Vehicle

The term 'motor vehicle' is defined in section 185(1) of the Road Traffic Act 1988 and section 136(1) of the Road Traffic Regulation Act 1984 as "a mechanically propelled vehicle, intended or adapted for use on roads".

Although this is the legal definition, ultimately it is a matter of fact and degree for a court to interpret as to whether or not a vehicle is a motor vehicle at the time of the incident.

The term "mechanically propelled vehicle" is not defined in the Road Traffic Acts. It is ultimately a matter of fact and degree for the court to decide. At its most basic level it is a vehicle which can be propelled by mechanical means. It can include both electrically and steam powered vehicles.

"Intended or adapted for use on roads" is also not defined by statute and again is ultimately a matter for the court to decide based on the evidence before it.

There has, however, been extensive case law on the subject and the main point that emerges is what is known as the reasonable man test as per the following cases:

Other vehicles which are not currently lawful for use on public roads unless registered and insured include self-balancing scooters (e.g. Segways), mini-Segways, Hoverboards, and single-wheel electric skateboards.

Charge considerations

Causing danger to other road users – section 22A RTA 1988

This offence may often overlap with other statutory offences, namely:

There will be occasions where although the offence under section 22A RTA 1988 is made out, the charging of one of the less serious offences listed above will be more appropriate.

Failing to Stop/Report an Accident

Section 170(2) RTA 1988 provides that the driver of the motor vehicle must stop following an accident and, if required to do so by any person having reasonable grounds for so requiring, give his name and address, the name and address of the owner of the vehicle and the identification marks of the vehicle. The duty to stop means to stop sufficiently long enough to exchange the particulars above: (Lee v Knapp [1966] 3 All ER 961).

Section 170(3) RTA 1988 places an obligation on the driver, if they do not give their name and address under subsection (2) above, to report the accident to a police constable or police station as soon as reasonably practicable and in any case within 24 hours. The duty to report means 'as soon as reasonably practicable': (Bulman v Bennett [1974] RTR 1). It does not mean the driver has 24 hours within which to report the collision.

When the evidence reveals a failure to comply with both subsections (2) and (3), proceedings should be brought for both offences. Failing to stop is usually viewed as the more serious of the two offences; it may be appropriate to accept a guilty plea to that offence in many cases.

Failing to Conform to Traffic Sign

Offences against traffic signs and police signals are dealt with in sections 35, 36, 37 and 163 of the Road Traffic Act 1988. The expression 'traffic sign' is defined in section 64 of the Road Traffic Regulation Act 1984. The offence is one of strict liability – no mens rea is required.

Driving/Obtaining a Driving Licence Whilst Disqualified

Section 103 RTA 1988 provides that a person is guilty of an offence if, while disqualified from holding or obtaining a licence, they obtain a licence, or drives a motor vehicle on a road.

A person who chooses to drive has a duty to ensure they are legally entitled to do so. It is no defence for that person to say that they thought a period of disqualification had expired, or that they were not aware that they had been disqualified in their absence.

A person disqualified under section 36 RTOA 1988 until a driving test is passed commits an offence under section 103 RTA 1988 if they drive otherwise than in accordance with any provisional licence issued.

Age prohibitions on driving are set out in section 101 RTA 1988. These are referred to as disqualification of persons under age. Driving whilst under age does not constitute an offence of driving whilst disqualified (by reason of age) under section 103 RTA 1988 by virtue of section 103(4) RTA 1988. A person who drives a vehicle on a road while disqualified by reason of age, commits an offence under section 87 RTA 1988, which prohibits a person driving a vehicle on a road otherwise than in accordance with a licence authorising him to do so.

Proof of Disqualification

Proof of disqualification is essential. In R v Derwentside Justices ex parte Heaviside [1996] RTR 384 the Court specified three ways in which a defendant could be proved to have been disqualified:

Recent cases have established that the three methods of identification of a person as described above were not exhaustive but merely examples.

In West Yorkshire Probation Board v Boulter [2005] EWHC 2342 (Admin); R v Burns [2006] EWCA Crim 617; and Olakunori v DPP [1998] COD. 443 DC, it was established that there was no prescribed way that identification had to be proved as this could be proved by any admissible means. The above cases expanded upon the methods of proof outlined in R v Derwentside Justices ex parte Heaviside in particular allowing the prosecution to rely on similarity of name, date of birth and address.

The offence of driving whilst disqualified, although a summary offence, can be included in the indictment if founded on the same facts or evidence, or if it forms part of a series of offences of the same or similar character as an indictable offence which has also been charged - section 40 (3)(c) Criminal Justice Act 1988.

Using a Vehicle without Insurance

Under section 143(1)(a) RTA 1988 "a person must not use a motor vehicle on a road or other public place unless there is in force in relation to the use of that vehicle by that person... a policy of insurance...". Under section 145 RTA 1988 the policy must be issued by an authorised insurer and must insure for death or bodily injury to any person, or damage to property, caused by, or arising out of, the use of a vehicle on a road in Great Britain, i.e. third party insurance.

A statutory defence is provided by section 143(3) RTA in relation to a driver who unwittingly drives their employer's uninsured vehicle.

Offences of causing or permitting the uninsured use of a vehicle should be regarded as being as serious as using a motor vehicle without insurance.

Where a driver has obtained a policy of insurance by deception, the policy will be valid so far as liability under section 143 RTA 1988 is concerned until the insurers have taken steps to "avoid" it.

Certain exceptions on policies of no effect

Under section 148 RTA 1988 Insurance companies cannot validly restrict an insurance policy by reference to any of the matters listed in section 148(2) RTA 1988. Where an insurance policy purports to impose a restriction based on any of the matters listed in section 148(2) RTA 1988, that restriction is of no effect and the policy should be read as if the words containing the restriction had been struck out. As a result, if an insurance policy contains a restriction (for example) that the driver must be aged over 21, that restriction may be void and a person aged under 21 who would otherwise have been covered to drive the vehicle may not be guilty of driving without insurance.

Each case must be considered on its own facts to determine whether or not section 148 RTA 1988 applies. Further guidance can be found in Wilkinson’s Road Offences. Prosecutors who are dealing with a prosecution for no insurance where the case is based on the driver not meeting some condition of the insurance must be vigilant to check that the exclusion relied upon to make out the offence is not one of those avoided by section 148(2) RTA 1988.

The offence is equally serious, whether "use" or "causing or permitting" is involved. There is a clear public interest in prosecuting offenders. Uninsured drivers pose a substantial risk to other road users.

An allegation of driving without insurance should never be withdrawn as a matter of convenience when pleas of guilty are tendered in respect of other offences.

Forgery and False Information, etc.

Sections 173 and 174 RTA 1988 and sections 44 and 45 Vehicle Excise and Registration Act 1994 (VERA 1994) create a number of indictable offences concerning forgery, fraudulent actions and false statements in connection with various road traffic documents.

Acts which breach these sections will often also amount to offences of a more serious nature which carry greater penalties. In such circumstances the prosecution need to decide which is the more appropriate charge. But usually charges under RTA 1988 and VERA 1994 should be preferred unless a defendant has committed a series of offences on a substantial scale for personal gain.

When dealing with offences specifically relating to the use of forged documents contrary to section 173(1) RTA 1988 or section 44 VERA 1994, the document concerned must be one of those listed within the relevant section. If the document is not listed, an offence under section 3 Forgery and Counterfeiting Act 1981(which is either way) may be considered.

Similar offences can be found in the following Acts:

Mutual recognition of driving disqualifications

An agreement between the UK and Ireland concerning the mutual recognition of driving disqualifications came into force on 1 August 2017. The agreement replaces the 1998 European Convention on Driving Disqualifications which the UK opted out of as part of the block opt-out from the Treaty of Lisbon on 1 December 2014.

Sections 54-79 of the Crime (International Cooperation) Act 2003 (as amended) provide the mechanism by which the agreement between the UK and Ireland is given legal effect.

Effects of mutual recognition of driving disqualifications with Ireland

The Crime (International Cooperation) Act 2003 (CICA 2003) now allows for mutual recognition of driving disqualification between the UK and Ireland. The CICA 2003 provides the method by which a driving disqualification imposed in Ireland or in the UK, upon on a UK or Irish resident, or upon the holder of a UK or Irish driving licence, for certain offences will be recognised and given effect in the UK and in Ireland.

Categories of driver behaviour

The following driver behaviours/conduct contained within the annex to the agreement and are mutually recognised:

Driving disqualifications imposed for an offence arising from such conduct is recognised under the Agreement, even if the actual offence committed is not an offence in the UK. The offence must arise out of one of the above categories.

Disqualifications which have arisen from the accumulation of penalty points – 'totting up' – are not subject to the arrangements.

Offences

If a driver is disqualified in the UK as a result of the recognition of an Irish disqualification, and continues to drive in the UK the driver commits the offence of driving whilst disqualified contrary to section 103 of the Road Traffic Act 1988.

If the driver has not returned their licence to the DVLA/DVA by the expiry of the 21 day period of the section 57 notice, then a summary only offence contrary to section 63 of CICA 2003 is committed in Great Britain.

Calculation of remaining period of time to be served by a UK resident for a disqualification incurred in Ireland

Within the UK the DVLA/DVA will apply a "same end date" approach. When the disqualification period ends in the place where the offence occurred, the disqualification will end in the UK on the same date.

In the UK, if we recognise a disqualification incurred in Ireland, the disqualification cannot take effect in the UK until a notice under section 57 CICA 2003 has been served by DVLA/DVA on the driver. The notice must state when the disqualification starts and ends in the UK. In practice we are deeming as having been served any period of time from the date the disqualification starts in Ireland to the time it takes effect in the UK.

Corresponding ‘re-test’ conditions

If an Irish court imposes a disqualification with a 're-test' condition before the disqualification period is lifted, the UK will also require the driver to re-sit their driving test. If an Irish court imposes any other conditions the UK will only be able to impose the disqualification, and not any conditions.

Questions and Answers

This guidance has been supplied by Department for Transport (DfT).

Do courts have to take an "Irish" endorsement into account if the driver is sentenced in court for another offence committed in the UK?

There is no mutual recognition of penalty points between the jurisdictions, so the UK court cannot take into account Irish penalty points, for totting up purposes. However, the court has a wide discretion, in considering whether to impose discretionary disqualifications in the UK, to consider all mitigating or aggravating factors. The court therefore may consider the driver's licence history generally.

What happens if the driver is caught driving in the UK with a "mutual recognition" disqualification in force?

The driver is committing an offence of "driving whilst disqualified" in accordance with s.103 Road Traffic Act 1988.

What happens if the driver claims as part of his/her appeal that it is a case of mistaken identity?

DVLA can ask the Irish authorities for further information. The most appropriate time to seek this would be before any appeal is heard. If, in spite of further information, the driver continues to claim mistaken identity then it will be for the court to decide whether the disqualification should be applied in the UK. The original decision to disqualify made by the Irish courts will remain effective in Ireland unless the driver chooses to take up the issue with the Irish authorities.

Is the date of conviction or the date of the offence used to determine if the driver falls within the arrangements?

The date of conviction, on the proviso that the date of the offence was no earlier than 1 August 2017.

Mobile phones and driving

This guidance has been produced to assist Prosecutors in cases involving the use whilst driving, of a hand-held mobile phone or other device, which is capable of performing an interactive function by transmitting and receiving data, whether or not those capabilities are enabled.

Since 2003, it has been a specific offence under the Road Vehicles (Construction and Use) Regulations 1986 (“the Regulations”) to use a hand-held mobile telephone or other hand-held device while driving or while supervising a learner driver. The offence originally applied only where the mobile phone/device was being used for an interactive purpose. This was clarified by the High Court in the case of DPP v Baretto [2019] EWHC 2044 (Admin).

That case concerned a driver using his mobile phone to film the scene of a road traffic collision, which the High Court found was not covered by the Regulations as then drafted.

The Regulations were amended by the Road Vehicles (Construction and Use) (Amendment) (No. 2) Regulations 2022 (“the 2022 Regulations) which came into force on 25 March 2022 and widen the scope of the offence to include any use of a hand-held mobile phone or other interactive communication device.

Offences relating to use of hand-held mobile phones or other devises

The Road Vehicles (Construction and Use) (Amendment) (No 4) Regulations 2003 amended the Road Vehicles (Construction and Use) Regulations 1986, by inserting Regulation 110 into the construction and use regulations. The Regulations were then further amended by the 2022 Regulations (see above) which effectively overturned the decision in Barreto.

Regulation 110(1) and (2) of the Road Vehicles (Construction and Use) Regulations 1986 prohibit a person from driving, or causing or permitting a person to drive, a motor vehicle on a road if the driver is using a held-hand mobile telephone or a hand-held device with an interactive communication function. Regulation 110(3) prohibits a person from using such a mobile telephone or device while supervising a holder of a provisional license (learner driver), whilst the learner is driving.

It is an offence under section 41D(b) RTA 1988 to contravene Regulation 110. The penalty imposed will depend upon the type of vehicle driven.

Key Definitions

“Hand-held”

Regulation 110 does not define “hand-held” although 110(6)(a) states that a mobile phone or device is to be treated as hand-held if it is, or must be, held at some point while being used. The correct interpretation of this is that it is a deeming provision which extends the meaning of “hand-held” (Baretto paragraph 42, which remains good law for these purposes.)

“Device”

Regulation 110(4) specifies that the hand-held devices to which it applies are those (other than two-way radios) which are capable of transmitting or receiving data.

“Using”

Regulation 110(6)(c) provides a non-exhaustive list of actions which amount to “using” a hand-held mobile phone/device.

These include:

The phone or device does not need to be seized before a prosecution can be brought but it will be necessary for there to be sufficient evidence that it was being used.

Prosecutors should note that the list given at Regulation 110(6)(c) is non-exhaustive and therefore it is not necessary to prove that one of these actions was being carried out, provided that there is evidence that what was done can be properly be described as “using” the phone/device.

In deciding whether the use falls within the ambit of the Regulations, prosecutors should have regard to the ejusden generis rule, i.e. "that a provision in the statute is, broadly speaking, to be interpreted as including things of a like kind" (see R v Uxbridge Justices [1994] 2 CMLR 288).

See “Alternative offences” and “Mobile phone and other driving offences” (below) where the evidence of for section 41D(b) RTA 1988 is not sufficient.

Stationary Vehicles

"Driving"

Whether or not a person is driving will be a matter of fact and degree in every case but there is some guidance to be found in the RTA 1988 and in case-law.

There is no specific definition of “drive” or “driving” in the RTA 1989 but section 192(1) provides that (except for the purposes of the offence of causing death by dangerous driving) “drive” and “driver” include anyone in another vehicle acting as steersman.

In R v MacDonagh (1974) 59 Cr App R 55, M was held not to have been driving by using his shoulder against the door pillar to push the car while having both feet on the road. The Court of Appeal said that:

A vehicle may be being driven even when it is stationary. In Pinner v Everett (1977) 64 Cr App R 160 Lord Upjohn said (in respect of whether P was a "person driving or attempting to drive" at the time he was required to provide a roadside breath test) "It is not necessary that the vehicle should be in motion. A person is obviously driving although he may be in an almost interminable traffic block or waiting at a level crossing or at traffic lights or if he merely fills up with petrol; nor can it make any difference if in a traffic block he switches the engine off to prevent it overheating or to save petrol."

In Edkins v Knowles (1973) 57 Cr App R 751 the Divisional Court summarised the case-law on the subject of when “driving” ceased:

This means that an individual stopped at a traffic light or held up in traffic could be prosecuted for a mobile phone offence. However, prosecutors should bear in mind that the intention of the legislation is to promote road safety. They should ask whether the use of the phone or other device is in circumstances which might prejudice the driver’s ability to drive safely.

A person who uses their phone while stationary at traffic lights will be distracted and less able to move off safely when the lights change. Similar considerations would apply to a driver stationary in a traffic jam.

However, although the House of Lords in Pinner v Everett held that a person might still be driving even when they turned off the engine and got out of the car it is unlikely, other than in exceptional circumstances, to be appropriate to use section 41D RTA 1988 to prosecute any person who in these circumstances used a hand-held mobile phone or other device. See “Public Interest” below.

Defences

Regulation 110(5) provides that no offence is committed where a person makes a call to the emergency services on 999 or 112 in response to a genuine emergency, where it is unsafe or impracticable for them (or the provisional licence holder) to cease driving whilst the call is made.

Regulation 110(5A) makes provisions to except the use of the mobile phone or other device to perform a remote-controlled parking function.

Regulation 110(5B) allows an exception where the car is stationary and the mobile phone/device is used to make a contactless payment.

Public Interest

In making their decisions on whether the public interest requires a prosecution, prosecutors should have regard to the purpose of the legislation, which is road safety.

Numerous academic studies from across the world have concluded that the using a hand-held mobile phone whilst driving significantly decreases driver performance Accordingly, the public interest will weigh in favour of a prosecution for a mobile phone offence where the evidential test is met.

Alternative Offences

In cases where there is uncertainty regarding the nature of the device, or dispute about whether it is being used, the alternative offence under section 41(D)(a) of the RTA 1988 (driving in such a position that he cannot have proper control of the vehicle) may be preferred. In some circumstances the evidence may support a charge of careless or dangerous driving depending on the seriousness of the risk posed by the driving.

Where the evidence is that the driving was so far below the required standard as to amount to dangerous driving prosecutors should normally charge that offence rather than an offence contrary to section 41D RTA 1988.

See sections on Dangerous Driving and Driving without Due Care and Attention under Road Traffic - Fatal Offences and Bad Driving.

  • section 6 RTOA 1988 which provides a special time limit for offences listed in Column 3
    1. reckless or dangerous driving (whether or not resulting in death, injury or serious risk)
    2. wilful failure to carry out the obligations placed on drivers after being involved in road accidents.
    3. driving a vehicle while under the influence of alcohol or other substances affecting or diminishing the mental and physical abilities of a driver
    4. refusal to submit to an alcohol and/or drug test
    5. driving a vehicle faster than the permitted speed limit
    6. driving a vehicle whilst disqualified
    7. other conduct constituting an offence for which a driving disqualification has been imposed by the state of offence:
    •  
      • of a duration of 6 months or more or
      • of a duration of less than six months where this has been agreed between the Contracting States
    • Illuminating the screen;
    • Unlocking the device;
    • Making, receiving or rejecting a call;
    • Using the camera, video or sound recording functions;
    • Accessing an app;
    • Accessing the internet
    1. the essence of driving was the use of the driver’s controls in order to direct the movement of the car but additionally
    2. the word “driving” must be given its ordinary meaning
    • The vehicle need not be moving. Once it has come to rest the operations of applying the handbrake, switching off the ignition etc. should be considered as part of the driving;
    • Has the motorist reached the end of their journey? Subject to the brief interval needed to carry out the operations referred to above then on reaching the end of the journey they should no longer be regarded as driving;
    • When the motorist stops during the journey the following questions will be relevant in deciding whether they are still driving or not:
      • Is the purpose of the stop connected with the driving?
      • How long was the stop? The longer it was the less likely it is that they can still be considered to be driving;
      • Did they get out? If not, that is an indication (although not conclusive) that they are still driving.
    • When a motorist has been effectively prevented or dissuaded from driving then they are no longer to be considered as driving.

The Code for Crown Prosecutors

The Code for Crown Prosecutors is a public document, issued by the Director of Public Prosecutions that sets out the general principles Crown Prosecutors should follow when they make decisions on cases.

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Prosecution guidance

This guidance assists our prosecutors when they are making decisions about cases. It is regularly updated to reflect changes in law and practice.

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