Use of Mobile Phone
It is an offence to use a hand held mobile phone when driving. “Use” includes any activity whilst holding your handset such as operating Apps, selecting a playlist, or checking for a text message. “Driving” will include sitting in a stationary vehicle with the engine running. The penalty will be a £60 fixed penalty or up to £1,000 on conviction in court (£2,500 for drivers of goods vehicles) plus 3 penalty points.
Whilst hands-free phone equipment is not specifically prohibited by legislation, these are also distracting and a driver is still at risk of prosecution for failing to have proper control of a vehicle under Regulation 104 of the Road Vehicles (Construction and Use) Regulations 1986 if you use a hands-free phone when driving. The penalty will be a fine of up to £2,500 for drivers of goods vehicles.
Collisions Involving Death or Serious Injury – avoidable distraction
Where a driver is involved in a serious or fatal road traffic collision the police will seize the mobile phone for analysis. Where there is evidence of use at the time of the collision, or immediately before, and the driver can offer no explanation for the collision, the Court is likely to assume that the driver was “avoidably distracted” by the use of his phone. An “avoidable distraction” will substantially increase any sentence and on present sentencing guidelines is likely to result in an immediate custodial sentence for the driver. This approach by the Court is irrespective of whether the mobile phone was in the hand of the driver or a hands-free system was being used. The Court is concerned, and will sentence accordingly, on the basis that the driver’s attention was avoidably distracted by use of a phone.
Death by Dangerous and Careless Driving:
Using a hand-held mobile phone when driving is, in itself, an unlawful act; the fact that a driver was avoidably distracted by using a hand-held mobile phone when a causing death by driving offence was committed will always make an offence more serious.
For example reading or composing text messages over a period of time will be a gross avoidable distraction and is likely to result in an offence of causing death by dangerous driving being in a higher level of seriousness (starting point 5 years custody).
Even in cases of causing death by dangerous driving where it is proved that a driver was briefly distracted by reading a text message or adjusting a hands-free set or its controls at the time of the collision, this would be considered an avoidable distraction (starting point 3 years custody).
These same principles will apply in sentencing for offences of causing death by careless driving (maximum sentence 5 years with a minimum ban of 12 months).
Implications to the Organisation
Health and Safety legislation applies to work activities on the road in the same way as it does to all work activities. An organisation must manage the risks to drivers and to other road users as part of its health and safety arrangements.
Sections 2 and 3 of the Health and Safety at Work Act 1974 require employers to ensure so far as reasonably practicable the Health and Safety of employees and others who may be affected by their business; this will include other road users. The Management of Health and Safety at Work Regulations 1999 section 3 (1) (a) require employers to carry out an assessment of risks to employees and others which includes driving risks. Risk in relation to mobile phone usage should be identified in the assessment and appropriate control measures identified, implemented and monitored for effectiveness. Whilst speaking on the telephone using a hands-free device is not specifically prohibited by legislation, if a driver is distracted when driving resulting in a collision the driver is likely to be charged with an offence which may carry a custodial sentence.
In the majority of cases the police will investigate road traffic collisions but the HSE or the police (in the event of death) may take enforcement action against an organisation and directors in the event of management failures. The HSE will investigate breaches under sections 2 and 3 of the Health and Safety at Work Act by the organisation, by employees section 7 ( duty ensure that employees take reasonable care for safety of themselves and others who may be affected by their acts or omissions), by directors and senior managers section 37 HSWA ( where an offence has been proved against an organisation a director or senior manager will guilty of an offence where it has been committed as a result of his consent connivance or neglect). The police will investigate offences of corporate manslaughter and gross negligence manslaughter.
HSWA offences are punishable under section 33 of HSWA. In relation to organisations, the penalty will be a fine. Currently there is no tariff and the fine is unlimited although there are sentencing guidelines in place for Corporate Manslaughter and for Health and Safety offences where the breach has resulted in death. Guidelines suggest fines start at over £100,000 for Health and Safety breaches resulting in death and £500,000 for Corporate Manslaughter.
From 1 February 2016 for the first time sentencing guidelines will be in place for the sentencing of all Health and Safety offences, the range depends upon the turnover of the organisation, harm and culpability. The range is from £50 to £10 million for HSWA offences and £180,000 to £20 million for Corporate Manslaughter. In so far as individuals are concerned there are a range of sentencing options available including custodial sentences up to 2 years for breaches of HSWA and life for gross negligence manslaughter.
In the event of a serious road traffic collision, the Police/ HSE will be seeking evidence to see whether the organisation has identified the risk, has implemented procedures, and complies with its own procedures. For example, does the organisation arrange conference calls at a time when it knows an individual is driving and therefore might be distracted?
The culture of the organisation is a key consideration and therefore if an organisation can demonstrate worker involvement consultation and education that will be extremely helpful in defending its safety management system.
Steve Green ACII