Clause 22 - Breach of requirements as to control of vehicle, mobile telephones etc.
Road Safety Bill
9:25 am
Mr Christopher Chope (Shadow Minister, Environment and Transport; Christchurch, Conservative)
I am more determined than ever to press the matter. What is the mischief that we are trying to address? It is people using a mobile phone when control of their vehicle is hampered because they are distracted. The Minister said that it is desirable to have a massive discretion as to whether, first, to prosecute and, then, to convict, and that that is best left to the police and the courts. Unfortunately, this offence will be the subject of fixed penalties, and we heard earlier that the only discretion in relation to fixed penalties was whether there should be disqualification. There is no discretion as to whether full penalty points should be imposed or, once the fixed penalty notice has been served, as to whether to proceed with a prosecution.
What the Minister said is slightly disingenuous in regard to the actual law. Last Thursday—this is the advantage of having the Official Report before us— she said:
''The term 'driving', to which the hon. Member referred, is used in much road traffic legislation without further definition.''
She went on:
''It is not necessary and any sensible person would recognise that if the car is stationary and the engine is turned off, no offence will be committed.''
The Minister has gone back slightly from that position. Again, last Thursday she said:
''if someone is stuck in a five-mile tailback because of an accident on the motorway and all the vehicles around them are stationary with their engines turned off, clearly it is fine to use a mobile phone, because the motorist is not about to drive off.''—[Official Report, Standing Committee A, 27 January 2005; c.188-9.]
The Minister said that a person who had been stationary for about 15 minutes would not automatically be not guilty of an offence. That would be subject to the decision of the police and the courts. I suspect that the reason why she has slightly modified what she said is that her advisers have been telling her what the law established by different court decisions is.
I want to refer briefly to the words of Lord Reid, one of the most senior Law Lords in the country's top judicial forum, in the case of Pinner v. Everett, reported in the House of Lords in 1969, as they are still highly relevant to this issue. He said:
''I must therefore consider in what circumstances a person can, by the ordinary usage of the English language, properly be said to be driving a car.''
He went on:
''Clearly the term cannot be limited to periods during which the car is in motion. Suppose the car is held up in a traffic jam and is stationary for five or ten minutes. No one would say that the driver is not driving the car during that period. He may have switched off the engine and be reading a book or a map; or he may have got out to clean his windscreen; and I do not think that it would make any difference if he got out to buy a paper from a newsvendor on the pavement.''
In all those circumstances the driver would still be driving. Under the Bill he would still be guilty of an offence that carried a mandatory three penalty points on his licence.
Lord Reid went on:
''But, on the other hand, suppose the driver pulls up at the kerb and leaves his car to go shopping. I do not think that it could be said that he is driving the car while he is buying groceries.''
That is one extreme. If a driver uses a mobile phone while buying groceries, having parked the car in a car park, he will clearly not be guilty of an offence, but if he leaves the car to speak to a newsvendor when he is stuck in a long traffic jam, he will still be guilty of an offence if, while purchasing that paper, he uses a mobile phone.
Another noble Lord in that same case, Lord Upjohn, said:
''A person in the driving seat preparing to drive by switching on is, in my view, driving. 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. But if the driver leaves his driver's seat it is more difficult. If the driver leaves his seat, removes the ignition key and locks up the car for the night, he is quite clearly . . . no longer driving''.
The reference to the learned words of noble former Law Lords has caused some wry amusement among members of the Committee, but we have the opportunity today to say, as legislators, that we do not believe a mandatory endorsement and penalty should follow if someone uses a mobile phone in a traffic jam when they have switched off the engine. We must legislate clearly. The decided case law that currently applies means that someone facing such charges would have to be advised by their solicitor, or their Member of Parliament, that they had no defence against the charges that have been brought, and would have to plead guilty and pay the fixed penalty. That is not what we intend. We should make it clear that an offence involving ''driving'' when the car is stationary with its engine switched off will not carry a mandatory endorsement.