Introduction
Causing death by careless or dangerous driving is not an objective for anyone earning a living to support themselves and their families by driving a lorry.
Heavy goods vehicle (HGV) drivers and operators spend their professional lives dealing with all manner of issues on the public highways. And in that time they (in common with all of us) will see motorists of all sorts (cars, vans, buses, coaches and lorries) doing things which are unsafe and unlawful.
Horror stories abound of drivers who become completely wrapped up in phone calls or texting, so much so that they can cause horrendous accidents which change their lives forever, as well as changing (and sometimes ending) many other lives into the bargain.
But what is the harm of the odd call if the need arises, and surely the individual driver is the best judge of the actual risk of using a mobile phone to make or receive a telephone call or to read or send a text? Indeed, how can it possibly be dangerous, careless or even unlawful to use a mobile when one is crawling along in heavy traffic, or in a stationary queue waiting for the lights to change? Aren’t these rules designed to be safeguards against genuinely unsafe driving, rather than a government revenue raiser in the form of taxing by fine?
A whistle stop tour of the law
Mobiles
The prohibitions on using a hand-held mobile telephone or other hand-held interactive communication device when driving, or causing or permitting the driving of a motor vehicle by another person using such a telephone or other device, has been on the statute books for over 10 years and the penalties involve more than a “slap on the wrist” with a fine of up to £2500 if driving an HGV, three points on the driver’s licence and a discretion to disqualify. Please note that since publishing this feature, the fixed penalty tariff for this offence has been doubled up to £200, highlighting the seriousness with which this offence is regarded. (The increased tariff will take effect on 1 March 2017.) The number of points on the driver’s licence will double to six.
To justify the use of a mobile (and thereby avoid a penalty), the court will need to be satisfied that the driver was:
using the telephone or other device to call the police, fire, ambulance or other emergency service on 112 or 999; or
acting in response to a genuine emergency; and that
it was unsafe or impracticable for the driver to cease driving in order to make the call.
In addition, as HGV operators and their drivers will know, the story does not end in the criminal courts. Convictions for mobile phone use are required to be reported to the Traffic Commissioner and it would be wise to take account of the Senior Traffic Commissioner’s Statutory Document on Vocational Driver Conduct (now in its third version and published on 16 January 2017) which states that:
The practice of vocational licence holders using a hand-held mobile phone and other electronic devices, and especially while driving a HGV or PSV, is unacceptable and presents an undue risk to road safety. A report for an offence that a vocational driver has used a hand-held device while driving will trigger the action set out in Annex A.
The presiding Traffic Commissioner will be keen to ascertain the reason the driver is using a hand-held device. In cases where drivers are speaking with their employers or their customers, the Traffic Commissioner may consider the effect this might have upon the operator’s repute.
Then turn to Annex A, where the Traffic Commissioner’s starting point for a first conviction (code CU80) in a commercial vehicle for a driver with no previous adverse conduct history is to call the driver to a Driver Conduct Hearing and to suspend the driver’s vocational entitlement for four weeks which in many instances will be a heavier financial penalty than the fine imposed by a magistrates’ court.
Of course, the penalties involving the use of mobiles do not stop here. Where the use of a mobile contributes to careless or dangerous driving, the penalties are far higher, and for such driving that causes serious injury or death custodial sentences can and do follow.
Careless driving
The offence of careless driving (driving without due care and attention) is committed when a person’s driving falls below the standard expected of a competent and careful driver. The Crown Prosecution Service’s (CPS) published guidance on when to charge with careless driving includes the following non-exhaustive list of factors that the decision-making CPS lawyer should take into account:
overtaking on the inside
driving inappropriately close to another vehicle
inadvertently driving through a red lighte
merging from a side road into the path of another vehicle
tuning a car radio; when the driver was avoidably distracted by this action
using a hand-held mobile phone or other hand-held electronic equipment when the driver was avoidably distracted by that use (note that this is an offence itself under regulation 110 of the Road Vehicles (Construction and Use) (Amendment) (No. 4) Regulations 2003). If this is the only relevant aspect of the case it is more appropriate to use the specific offence
selecting and lighting a cigarette or similar when the driver was avoidably distracted by that use.
Dangerous driving
Dangerous driving involves driving that falls far below what would be expected of a careful and competent driver and where it would be obvious to a competent and careful driver that driving in that way would be dangerous. Once again, the CPS guidance on when to charge refers expressly to mobile phone use:
using a hand-held mobile phone or other hand-held electronic equipment whether as a phone or to compose or read text messages when the driver was avoidably and dangerously distracted by that use.
The similarity between mobile phone use that might constitute careless driving and use which could constitute dangerous driving is striking.
So what should operators be doing?
As a bare minimum, ensure as far as possible that no calls are made unless there is a proper “hands-free” facility available (a smartphone’s loud speaker is not enough) — at least cost out the fee for putting hands-free kits into all the vehicles.
Have a written policy in place that sets out the “dos” and “don’ts” of drivers making and receiving calls, and do not be afraid to take action under a discipline and dismissal procedure if drivers are found to be ignoring the rules (even if they are not caught by enforcement).
Do as much as one can to put the policy in context: the reasons why the policy is in place (to keep drivers safe and to comply with the law) and the penalties that can apply in the event that a driver is caught or, worse, becomes involved in an accident that would likely have been avoided but for using the mobile in the first place.
Check the syllabuses for Driver CPC training and make sure that mobile phones are covered as part of the teaching.
Lead by example — operators whose management team ignore their own rules often get “found out” by their drivers, and “do as I say not as I do” is not a credible mission statement
Credit to Richard Pelly, Director at Pellys Transport & Regulatory Law