This month’s legal insight on Driver Distraction, for those who manage drivers, comes to us from Mike Hayward of Woodfines Solicitors.

Distracted Driving – steering you in the right direction.  

Leaving aside the ongoing development of autonomous vehicles, cars, vans, lorries and buses still have a big round instrument fitted – most commonly called a steering wheel!

This component played a central role in your driving test when your examiner expected at least one hand to be placed on it, while the other only came off to change gear.

Nowadays, vehicle users are likely to have their hands on their mobile phone – they either place them into a cradle, or mirror them to their smart screens in the vehicle. The difficulty then is that the mobile phone adds a temptation to read and respond to a message, or to go onto a music streaming app, or even to watch a video clip while driving.

Driver Distraction – social media

The driving test does not have a section on how to upload a social media post while carrying out an emergency stop, for good reason – the reasons being (in addition to common sense) that it is unlawful, will reduce reaction times and could lead to the death or serious injury of the driver or another person.

Yet, drivers continue to take the risk of using a handheld device, placing the importance of responding to a message higher than the safety of road users.

It is not the vehicle that crashes when a driver is distracted – it’s the the driver. The difference between a driver as a vehicle ‘component’ and that of the steering wheel is that a driver has a personality complete with personal behavioural characteristics. We can all relate to the response we experience when we hear our phones ping and feeling compelled to respond immediately, even when sitting around the dinner table. Yet that habit and addiction to the fast-paced communication world we live in can be fatal when behind the wheel of a vehicle.

Habit can become addictive, where the behaviour of having to respond to a message becomes a compulsion, regardless of the seriously negative outcomes that could arise. Consequences range from getting 6 points on your licence if caught, through to being imprisoned for causing a death or serious injury to someone through distracted driving. The impact is so far reaching, yet adding a ‘like’ emoji to a social media post can still be the overwhelming urge for some drivers.

Distracted Driving – the law

As a criminal defence Solicitor specialising in motoring law, I have dealt with countless people who find themselves facing fixed penalties and Court proceedings for mobile phone breaches. or careless/dangerous driving.

It is no excuse or defence to say that they had to use their device to take a work instruction or to update on a delivery. Fleet managers should have a clear driving for work policy that includes not using methods of communication to their drivers that could lead to a device (phone or other handheld device) to be used when the vehicle is in motion, because that would infringe the law or could add to driver distraction.

Driver Distraction – hands-free and handheld mobiles

It is correct to say that being caught using a handheld device could lead to a minimum of 6 points and a fixed penalty, but that in itself will potentially lead a vocational driver to be called to The Traffic Commissioner for losing their right as an HGV driver, or for others to have increased insurance premiums.

As a company, you should have a clear policy of zero tolerance for any breach of the law in your driver handbook and driving for work policies, – and to do your bit by not expecting drivers to take or make calls or other communications.

Driver Distraction – what else is your driver doing while driving for work?

In this article I have used a mobile phone as an example, but driver distraction goes beyond a device.

Reaching for a vape in a glove box, grabbing a lunch box from the back seat…the list goes on. Ensure your driving for work policies state the importance of adhering to all road laws and taking all steps to avoid any type of driver distraction.

In a world of distraction and the addiction to social media, it remains a grave concern that the increase in mobile phone use in driving cases continues.

What is not always understood by people is that it is not just taking a risk that you may receive 6 penalty points for using a handheld phone.

If you are involved in causing serious injury you could be charged with careless or inconsiderate driving which is where it can be shown that the standard of driving was below the threshold for dangerous driving, but could include engaging in an avoidable distraction such as using a mobile phone or having your visibility obstructed.

This can also include being deprived of adequate sleep, and if you are involved in a vehicle incident that causes grave physical injury then you can forget 6 penalty points or a disqualification. You will be looking at the reality of a potential prison sentence of up to 2 years imprisonment.

Distracted Driving – the impact

As Solicitors we see the major impact that serious injury or fatal circumstances cause to the affected families of the injured or deceased, and also to the driver who, whilst lacking any intent to cause anybody harm, has caused that irreversible loss or damage.  Being arrested, interviewed by the police, and potentially appearing in Court having had bail removed in the first instance will lead, in most cases, to an appearance in a Crown Court.

A conviction is far reaching in terms of a criminal record as well as the impact on the ability to be insured on a vehicle in the future – and certainly on the cost of insurance premiums.  The ability to maintain work and to generally contribute to social and work life is impacted.

So a driver should not think of the minor risk that is being taken, and that if things go wrong, they may get points.  They may find themselves incarcerated.

When behind the wheel of a vehicle, drivers should think about their actions and those consequences.  Being in control of your vehicle at all times is essential.  From thinking it entirely innocent to put music from your smartphone onto your vehicle mirror screen, or even to be distracted as you refill that vape or light a cigarette can impair your driving, cause a momentary distraction – and that moment can turn into lengthy, emotional and irreversible legal consequences. It will not only stay on your driving record but on your criminal record, and more importantly, in your memory for life.

Driver Distraction – how common?

Statistics show that

• 0.3% of all vehicle drivers were observed using a mobile phone while driving
• 0.6% of van drivers were observed using a mobile phone while driving, compared to 0.2% of car drivers
• Males, and drivers estimated as aged 17 to 29, were more likely to be observed using a mobile phone
• The number of prosecutions for motoring offences increased by 6% from 694,000 in 2022 to 733,000 in 2023. The increase in motoring offence prosecutions included using or causing others to use a handheld mobile phone while driving
• In 2022, 22 people were killed and 652 injured in road traffic collisions in Great Britain where the driver was assigned the contributory factor of using a mobile phone
• In 2023, there were 15,300 prosecutions for ‘using’ or ‘causing others to use’ a handheld mobile phone while driving

The law does not limit illegal mobile phone, sat nav or other device breaches to a fixed penalty or fine, but distracted driving can lead to prosecutions for careless or dangerous driving, or where death or serious injury arises, those offences.

The offence of driving without due care and attention (careless driving) under section 3 of the Road Traffic Act 1988 is committed when the defendant’s driving falls below the standard expected of a competent and careful driver – section 3ZA(2) of the RTA 1988.

Some examples of careless or inconsiderate driving include the driver being avoidably distracted by tuning the radio, lighting a cigarette etc. but other driving behaviours may be caused by being distracted such as:

• unnecessarily staying in an overtaking lane or
• unnecessarily slow driving or braking

The more serious offence of dangerous driving under section 2 of the Road Traffic Act 1988 is committed when the defendant’s driving falls far below the standard expected of a competent and careful driver, and it would be obvious that driving in that way would be dangerous – section 2A of the RTA 1988.

Dangerous Driving – court cases

Some typical examples from court cases of dangerous driving include the driver being avoidably and dangerously distracted, for example by:

• using a hand-held phone or other equipment
• reading, or looking at a map
• talking to and looking at a passenger
• lighting a cigarette, changing a CD or tape, tuning the radio.

The list is non exhaustive  – the Crown Prosecution Service (CPS) guidance and law can be found here: https://www.cps.gov.uk/crime-info/driving-offences

Driver Managers – check your understanding

As fleet managers or driver managers therefore, be aware that using a device illegally includes:

• sending or receiving oral or written messages
• sending or receiving documents
• sending or receiving still or moving images
• providing access to the internet
• accessing photos / music

The list again is non exhaustive, so it needs to be clear that there should be no mobile use when in control of the vehicle.

The message should not simply be that distracted driving may get penalty points – but instead that the driver may face a prosecution for :

• Causing death by dangerous driving;
• Causing death by careless or inconsiderate driving;
• Causing death or serious injury through careless or dangerous driving

Tips for fleet managers

• Educate your drivers and managers
• Use toolbox videos and instructions for your drivers
• Do you have a policy for those who drive for work? Are your driving policies up to date? Are they enforced?
• What devices/systems need to be installed?
• Is your employee handbook up to date?
• Do you regularly review driver convictions and penalties?

Your drivers need to know that, whatever vehicle they are in charge of, they should remember the importance of their driving licence, their repute and even their liberty.

To be disqualified could be difficult, but to lose a driving licence by causing harm to themselves, their passengers or other road users is hugely destructive and life changing.

Fleet managers and driver employers need to exercise their duty of care for their employees. Setting standards of expected driving behaviour forms a crucial part of that duty of care for work related road risk, road safety, insurance risk premium reduction and health and safety legislative expectations.

Separately, showing your care for your drivers may also make them feel valued. Safety policies, including those relating to driving for work, are a sign of good practice and management of employee wellbeing.

Mike Hayward and his team act for business and individuals in motoring matters and a full range of health and safety and criminal cases.