Factual and Procedural Background
This opinion arises from an application to compel magistrates to state a case after their refusal on the ground that the request was "frivolous". The underlying matter concerns a conviction at Lavender Hill Magistrates Court of the Appellant for the offence of holding a mobile phone while using it, contrary to Regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986 as amended. The Appellant was driving a vehicle and making a phone call via the car's Bluetooth hands-free system while holding the mobile phone to prevent it from slipping off the passenger seat. The magistrates convicted the Appellant, imposed penalty points, a fine, and costs, rejecting submissions that special reasons existed to avoid the usual penalties.
The Appellant applied for the magistrates to state a case on nine questions relating to the interpretation of Regulation 110, particularly concerning the use of Bluetooth connectivity and the concept of "special reasons". The magistrates refused to state a case, issuing a certificate pursuant to section 111(5) of the Magistrates Court Act 1980, relying on precedent including R v Bendt [2022] EWHC 502 (Admin). The Appellant then applied for judicial review seeking an order of mandamus compelling the magistrates to state a case.
Legal Issues Presented
- Whether the magistrates were correct to determine that the Appellant’s application to state a case was frivolous, particularly regarding the interpretation of "using" a mobile phone under Regulation 110 when the phone was connected via Bluetooth and held only to prevent it slipping.
- Whether holding a mobile phone to prevent it from slipping constitutes "use" of the phone under Regulation 110.
- Whether the magistrates were correct to refuse to find "special reasons" under Section 44(1) of the Road Traffic Offenders Act 1988 to avoid the usual penalties.
- Whether the magistrates erred in refusing to state a case on the issue of special reasons.
Arguments of the Parties
Appellant's Arguments
- "Using" a mobile phone under Regulation 110 requires active interaction between the driver and the device.
- The Appellant was using the car’s Bluetooth hands-free system to make the call, not the phone directly.
- Holding the phone was incidental, to prevent it from slipping, and did not amount to "use".
- The list of activities in Regulation 110(6)(c) implies manual interaction is necessary for "use".
- Parliament would have expressly prohibited mere holding if that was intended, as in the Republic of Ireland legislation.
- The Appellant relied on dictionary definitions of "use" to support the submission that incidental holding is not use.
Interested Party's (CPS) Arguments
- The Appellant was using a hand-held mobile phone as the device was held while being used to make a voice call.
- Bluetooth connectivity does not separate the phone from use; the phone is the device used.
- The purpose of the offence is to prevent driver distraction caused by holding and using a phone simultaneously.
- Dictionary definitions do not assist; the Appellant was using the phone throughout the call.
- Holding the phone while making a call, whether via Bluetooth or internal microphone, constitutes an offence.
- Holding the device for any reason during use is prohibited, regardless of the motivation for holding it.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Bendt [2022] EWHC 502 (Admin) |
Use of a mobile phone via Bluetooth to interact with a vehicle’s sound system constitutes "interactive communication" and use under Regulation 110. |
The Court relied on Bendt to affirm that Bluetooth communication amounts to use of the mobile phone, supporting the magistrates’ refusal to state a case on the offence. |
| Director of Public Prosecutions v Barreto [2019] EWHC 2044 (Admin) |
Use of a mobile phone’s camera function while driving does not amount to an offence under Regulation 110 as it is not an interactive communication function. |
Referenced to distinguish types of phone use; the Court noted that not all phone functions constitute an offence. |
| R v North West Suffolk Mildenhall Magistrates Court ex parte Forest Heath District Council [1997] EWCA Civ 1575 |
Definition of "frivolous" in the context of applications to state a case as futile, misconceived, hopeless or academic. |
Applied to determine that the magistrates’ refusal to state a case on the offence was not frivolous. |
| Whittall v Kirby [1947] KB 194; [1946] 2 All ER 552 |
Test for "special reasons" in road traffic offences involving mitigation, connection to offence, and discretion in sentencing. |
Used to assess whether magistrates properly considered special reasons; found refusal to state a case on special reasons was flawed due to lack of reasoning. |
| R v Wickens (1958) 42 Cr App R 236 |
Four conditions for special reasons: mitigation, no defence, direct connection to offence, and proper consideration in sentencing. |
Applied to evaluate magistrates’ findings on special reasons; uncertainty in magistrates’ reasoning led to quashing refusal to state a case on this point. |
| R v Metropolitan Stipendiary Magistrates, Ex p. Levy 1997 WL 1106007 |
Court’s discretion regarding mandamus orders compelling magistrates to state a case, favoring less inconvenient procedures. |
Considered in deciding procedure for remitting the special reasons issue to magistrates without unnecessary delay or duplication. |
| DPP v Bristow [1998] RTR 100 |
Application of the fourth condition of special reasons in emergency driving cases. |
Referenced in discussion on how special reasons might apply to instinctive acts like catching a slipping phone. |
| DPP v Heathcote [2011] EWHC 2536 (Admin) |
Further authority on the application of special reasons and mitigation in road traffic offences. |
Used to inform discussion on special reasons and judicial discretion in sentencing. |
Court's Reasoning and Analysis
The Court analyzed the issue of "use" of a mobile phone under Regulation 110 as a unitary question encompassing both holding and using the device. It rejected the Appellant's attempt to separate "holding" from "using" and the submission that incidental holding to prevent the phone slipping is not use. The Court held that the phone was being used throughout the call via the Bluetooth connection, and holding the phone during this use constitutes an offence. The Court emphasized that the Regulation's language is broad and purposive, designed to prevent driver distraction by prohibiting holding a phone while it is being used, regardless of the driver's motivation for holding it.
Regarding the refusal to state a case, the Court accepted the magistrates were entitled to find the application frivolous concerning the offence, as the law was well established by precedent, including R v Bendt.
However, the Court found the magistrates' refusal to state a case on the issue of special reasons was flawed. The magistrates failed to provide clear reasons explaining why special reasons were rejected, creating uncertainty about whether the four conditions from R v Wickens were properly considered. The Court noted the presence of mitigation was acknowledged but not reconciled with the refusal to find special reasons. This lack of reasoning rendered the magistrates' decision on special reasons not sustainable in public law terms.
The Court declined to exercise its own powers to state a case on special reasons, preferring to remit the issue to a differently constituted bench, ideally a District Judge with expertise in road traffic matters, for a full reconsideration including both the existence of special reasons and the exercise of discretion on penalty.
Holding and Implications
The Court REFUSED the application for judicial review insofar as it challenged the magistrates' refusal to state a case on the conviction for the offence of using and holding a mobile phone while driving. The magistrates were entitled to find the Appellant committed the offence and that the application to state a case on conviction was frivolous.
Conversely, the Court ALLOWED the judicial review application regarding the refusal to state a case on the issue of special reasons. The magistrates' refusal was unlawful due to insufficient reasoning and uncertainty about the application of the legal test for special reasons.
The matter of special reasons and the related exercise of discretion on penalty is remitted to the Magistrates Court for reconsideration by a differently constituted bench, preferably a District Judge. The new bench is directed to consider each of the four conditions set out in R v Wickens, provide clear reasons for their decision on special reasons, and, if special reasons are found, determine the appropriate penalty.
No new legal precedent was established by this decision. The direct effect is to uphold the conviction and require reconsideration of special reasons and penalty by the magistrates.