Ramsey Barreto was prosecuted for filming while driving but his case could be overturned after his lawyers pointed out an apparent loophole in the law
Hundreds of convictions for using phones at the wheel could be overturned, legal experts say, after a loophole cleared a rubbernecking driver who filmed a crash’s aftermath.
Ramsey Barreto, 51, was stopped by police after he was seen gathering footage as he passed the scene of a serious accident in Ruislip, west London, in August 2017.
The builder was charged with breaches of rules relating to mobile phone use while driving and convicted by magistrates in July the following year.
But his conviction was overturned in a landmark case at Isleworth Crown Court in October 2018, when a judge said the regulations do not ban use of a phone to shoot video while driving.
Mr Barreto’s case went to the High Court and today two of the country’s top judges upheld the crown court decision, clearing him of the offence today.
His solicitor, Emma Patterson, says this opens up the possibility that defendants who feel they were misrepresented could have their convictions overturned. There have been 8,300 convictions in England and Wales since 2017 – opening the possibility for hundreds to be overturned.
Ms Patterson said: ‘We might be able to persuade the courts to reopen cases where people have been convicted on a misapplication of the law, especially when they were unrepresented at the time they pleaded guilty or were found guilty.
‘Also anybody that pleaded guilty thinking that what they were doing did amount to an offence – the police will give people ‘legal advice’ at the roadside which people seem to accept at face value – may be able to argue that their original guilty plea was equivocal.
‘Again another ground for reopening the conviction despite a guilty plea and the first instance.’
Mr Barreto was stopped by police who said he filmed the aftermath of a crash on this street
Delivering the verdict today – – and confirming the loophole – Lady Justice Thirlwall, who heard the case with Mr Justice Goss, said: ‘The legislation does not prohibit all use of a mobile phone held while driving.
‘It prohibits driving while using a mobile phone or other device for calls and other interactive communication – and holding it at some stage during that process.’
Mr Barreto had been charged under road safety regulations dating back to 1986, which were revised in December 2003 to take account of the mobile phone hazard.
The 2003 rules bar drivers from using hand-held phones, but Mr Barreto’s lawyers successfully claimed the restriction is aimed only at ‘performing an interactive communication function’.
That would prevent all talking, texting and internet usage on the handset while driving – but not using a phone as a camera.
What is the law on driving while using a mobile phone?
Using a hand-held mobile phone while driving is illegal. Laws were first enacted in December 2003.
Since 2017, the penalty has been six points on your licence and a £200 fine.
Driver are allowed to use a phone if it is fully hands-free, but not allowed to pick it up.
The law still applies when your vehicle is stopped at lights or in a traffic queue.
The current case centred on whether using a phone to film, rather than communicate with someone, should be treated as driving without due care and attention rather than driving while using a hand-held phone.
And judges agreed there is a loophole related to filming with a phone’s camera.
Mr Barreto’s lawyer Emma Patterson, who successfully argued the case, said today: ‘We have been arguing for many years that the legislation in relation to the offence of using a handheld mobile phone whilst driving a motor vehicle has failed to keep pace with the evolution of smart phones.
‘The increasing multi-functionality of smart phones was, in fact, making a mockery of the law.
Mrs Patterson says that as the law stands it’ll fall to prosecutors to prove a driver was engaged in ‘interactive telecommunication’ before an offence has been committed.
She adds: ‘In May this year David Beckham was banned from driving for six months for using his mobile phone while behind the wheel.
‘In this case, the offence was brought to light because a member of the public photographed Mr Beckham holding a phone as he drove in slowly moving traffic.
‘But was Mr Beckham engaged in ‘interactive telecommunication’? We don’t know because the prosecuting lawyers did not present evidence to prove that offence.
‘Because of this new test case, historic cases such as Mr Beckham’s can be viewed in a completely different light.
‘And he’s not the only one who might feel aggrieved.’
Lady Justice Thirlwall – ruling on an appeal against Mr Barreto’s acquittal by the Director of Public Prosecutions – said that in 2003 the concern had been about people making or taking calls while driving.
At that time, most mobile phones had games functions, but there was no concern of people playing games while driving, she said.
However, 16 years later, mobile phones have advanced to include cameras and web-based applications, she added.
Louis Mably QC, for the DPP, argued that the purpose of the rules is to ‘guard against unsafe driving caused by drivers holding their phones and using them’.
‘There is no rational distinction to be drawn between a mobile telephone used by a driver to perform an interactive communication function on the one hand, and use by a driver for a different equally distracting purpose on the other,’ he added.
But Mr Barreto’s barrister, Jyoti Wood, argued that the rules only relate to use of a phone for ‘interactive communication,’ including calls, texting and web use.
Dismissing the DPP’s appeal, Lady Justice Thirlwall said the regulations were ‘cumbersome’, but that the effect is ‘clear’ – only using a phone for communication is banned.
‘I do not accept Mr Mably’s submission that this interpretation is incoherent,’ she continued.
‘On the contrary, it coincides with and reflects the purpose of the legislation.’
She added: ‘I am satisfied that the crown court was right to quash the conviction.’
However, the judge said that, while filming is not banned under the mobile phone regulations, it might constitute another crime.
‘It should not be thought that this is a green light for people to make films as they drive,’ she said.
‘Driving while filming events or taking photographs whether with a separate camera or with the camera on a phone, may be cogent evidence of careless driving, and possibly of dangerous driving.
‘It is criminal conduct which may be prosecuted and on conviction may result in the imposition of penalties significantly more serious than those which flow from breach of the regulations. The same applies to any other use of the phone while driving.’
UK motoring expert Francis Noakes, of the Get Licensed Driving School, urged lawmakers to revisit the legislation as a ‘matter of urgency’.
He said: ‘Driving whilst using a mobile phone, contrary to section 110 of the Road Vehicles Regulations 1986, warrants 6 points on your licence and a standard fine of £200, with a maximum fine of up to £1000.
‘But what this test case shows is that, as it stands, prosecutions are far from straightforward and an offence is difficult to prove.
‘The law is designed to prohibit active involvement in communication whilst driving.
‘If you use an App that allows you to communicate with other people, you’re committing an offence.
‘But there’s now a massive grey area. Is checking the weather on an app an offence? Can you make voice memos in your phone with impunity?
‘When it comes to road safety, we simply can’t allow for any uncertainty to exist. I’d urge lawmakers to revisit and tighten the legislation as a matter of urgency.’