Can Instructors use an Ipad on the move?

By November 28, 2016 September 4th, 2022 Uncategorized

ipadposition
Updated and rewritten for 2022

Another topic that seems to have cropped up lately and is related to my earlier post on mobile phone use

Can Instructors (or rather supervising Drivers) hold an Ipad (or similar tablet) on the move?

(Why they’d want to I don’t know – personally I don’t use a tablet when training) –

The simple answer is NO but there are some caveats.

 

The law just like with normal ‘mobile phones’ says

“a mobile telephone or other device is to be treated as hand-held if it is, or must be, held at some point while being used“

So you could quite happily have it in a car mounting bracket.

You could in theory, remove the Wi-Fi and cellular chips from a tablet if fitted and just use a SD Card or something to transfer files off when you returned to base which would be legal so far as the Construction and Use Regulations are concerned.

Some people in Facebook posts etc.  suggest that you can use a phone in a holder however you can’t touch it on the move or adjust the satnav on the move etc, but this has no basis in the law.

If you are not holding the device, i.e. its in a cradle then you cannot be convicted under the mobile phone legislation, the regulations detailed further down in this page clearly require the device to be held in your hand. The regulations also require the use to be only “on a road”. A distinction lost on many, as it does not include “public place”.  A road may be a public place, but a public place is not automatically a road, a subject worthy of an article in itself, but at its most basic an enclosed private car park with no means of travel from A to B is unlikely to be a “road” .

However there is something else to consider.

As well as another “catch all” offence from s3 of the Road Traffic Act 1988:

“Careless, and inconsiderate, driving.

If a person drives a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, he is guilty of an offence.”

The section creates two offences that of careless driving and that of reasonable consideration. We are only interested in the former. Unlike the other offences however there would need to be some kind of evidence showing that the driver wasn’t demonstrating due care, such as swerving over the road etc.

Section 104 Offence?

The mobile phone amendment just added another part to an already existing section of the Road Traffic Act 1988. That section is a long standing ‘catch-all’, and still applies if the device is in a cradle.

“41D Breach of requirements as to control of vehicle, mobile telephones etc.

A person who contravenes or fails to comply with a construction and use requirement—

(a)as to not driving a motor vehicle in a position which does not give proper control or a full view of the road and traffic ahead, or not causing or permitting the driving of a motor vehicle by another person in such a position is guilty of an offence”

Section 41D, (a) incidentally was rather bizarrely added, and actually just repeats Section 104 of the The Road Vehicles (Construction and Use) Regulations 1986, (as well as adding subsection (b) – the prohibition on mobile phones)

Section 104 says “No person shall drive or cause or permit any other person to drive, a motor vehicle on a road if he is in such a position that he cannot have proper control of the vehicle or have a full view of the road and traffic ahead“

Back before 2007, when mobile phone use, and texting while driving was turning into a hot topic but wasn’t as yet a specific offence, this was what we used to issue fixed penalties for if we saw a driver using a mobile phone and were so minded.

As in my earlier article on the liabilities to ADI’s when supervising a learner , a supervising driver has to ‘supervise’. That means doing whatever is expected to prevent the learner driver from acting carelessly or endangering others.

So, are they are in effect covered by S41D? Well, the wording only says, “driving a motor vehicle”. You can’t be driving it from the passenger seat if you are not controlling the vehicle in some way. (you may be “driving from the passenger seat if you were using any of the controls though)

Motorcycle Direct Access Instructors aren’t in a position to take direct control of the learner, neither are CBT instructors, and in most cases LGV or PSV instructors.

Applying Section 104 to Supervising Drivers seems a stretch to far me in most circumstances, especially as only the driver is mentioned in the legislation.

As mentioned, there may of be times when they could be classed as driving if they were taking physically control, and there may be times they are “in charge” but the definitions of both are far too long to discuss here.

Finally, there is also Section 109 of the Con and Use Regulations to consider:

109.—(1) No person shall drive, or cause or permit to be driven, a motor vehicle on a road, if the driver is in such a position as to be able to see, whether directly or by reflection, a television receiving apparatus or other cinematographic apparatus used to display anything other than information—

(a)about the state of the vehicle or its equipment.

(b)about the location of the vehicle and the road on which it is located.

(c)to assist the driver to see the road adjacent to the vehicle; or

(d)to assist the driver to reach his destination.

(2) In this regulation “television receiving apparatus” means any cathode ray tube carried on a vehicle and on which there can be displayed an image derived from a television broadcast, a recording or a camera or computer.

It’s clearly not a cathode ray tube so the section about image derived from a computer doesn’t apply.

But is it a Cinematographic apparatus?

Well ultimately that would be for a court to decide, however as Cinematography is defined as the science or art of motion-picture photography, and a static image of a test report isn’t moving.  Not only that, but the police also already appear to accept that a smart phone in a cradle that can be seen by the driver doesn’t come under this offence, otherwise they’d be issuing thousands, if not millions of fixed penalties every day.  Section 109 was devised to prevent the driver watching a film while driving along. The old-fashioned Cathode-Ray tube displays were constantly moving, even when displaying a static image as a consequence of how they worked, so were caught within the legislation. LED displays do not move when showing a static image, the pixel is either on or off in simple terms, so again I think it would be stretch to this to apply to them.

 

Lastly Examiners – Yes they are exempt from any mobile phone offence as in law they aren’t deemed to be supervising drivers when conducting a Driving Test, so for the same reason if there is a S104 offence they are also exempt.

However, they have no exemption from the S109 offence. So whatever means used such as privacy screens etc could equally be used by a supervising driver, if they had a device that was exempt.

Supervising a Learner – could you be liable?

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2022 Update

The revised legislation is listed below: Contrary to the press there has been no great change, all of the listed actions were illegal until 2019 anyway and using a device in a cradle still remains legal.
The only real difference other than the exemption for paying for goods, is this section:

“which is capable of transmitting and receiving data, whether or not those capabilities are enabled”.  This removes the ambiguity where some people were suggesting on Facebook etc that you could hold an iPad etc as long as it was in airplane mode.
(As I said in the original article below you could in theory buy a cheap tablet physically remove the Wifi/Bluetooth module and just transfer records backwards and forwards via SD or USB if anyone wants to be a test case)

Amendment of the Road Vehicles (Construction and Use) Regulations 1986
2. The Road Vehicles (Construction and Use) Regulations 1986(1) are amended by inserting after regulation 109—

“Mobile telephones
110.—(1) No person shall drive a motor vehicle on a road if he is using—

(a)a hand-held mobile telephone; or
(b)a hand-held device of a kind specified in paragraph (4).
(2) No person shall cause or permit any other person to drive a motor vehicle on a road while that other person is using—

(a)a hand-held mobile telephone; or
(b)a hand-held device of a kind specified in paragraph (4).
(3) No person shall supervise a holder of a provisional licence if the person supervising is using—

(a)a hand-held mobile telephone; or
(b)a hand-held device of a kind specified in paragraph (4),
at a time when the provisional licence holder is driving a motor vehicle on a road.

(4) A device referred to in paragraphs (1)(b), (2)(b) and (3)(b) is a device, other than a two-way radio, which is capable of transmitting and receiving data, whether or not those capabilities are enabled.

(5) A person does not contravene a provision of this regulation if, at the time of the alleged contravention—

(a)he is using the telephone or other device to call the police, fire, ambulance or other emergency service on 112 or 999;
(b)he is acting in response to a genuine emergency; and
(c)it is unsafe or impracticable for him to cease driving in order to make the call (or, in the case of an alleged contravention of paragraph (3)(b), for the provisional licence holder to cease driving while the call was being made).

(5B) A person does not contravene a provision of this regulation, if at the time of the alleged contravention—

(a)that person is using the mobile telephone or other device to make a contactless payment;
(b)for a good or service which is received at the same time as, or after, the contactless payment is made; and
(c)the motor vehicle is stationary.”;

(6) For the purposes of this regulation—

(a)a mobile telephone or other device is to be treated as hand-held if it is, or must be, held at some point while being used;

(b)a person supervises the holder of a provisional licence if he does so pursuant to a condition imposed on that licence holder prescribed under section 97(3)(a) of the Road Traffic Act 1988 (grant of provisional licence);

(c) the word “using” includes the following:
(i)illuminating the screen;
(ii)checking the time;
(iii)checking notifications;
(iv)unlocking the device;
(v)making, receiving, or rejecting a telephone or internet based call;
(vi)sending, receiving or uploading oral or written content;
(vii)sending, receiving or uploading a photo or video;
(viii)utilising camera, video, or sound recording functionality;
(ix)drafting any text;
(x)accessing any stored data such as documents, books, audio files, photos, videos, films, playlists, notes or messages;
(xi)accessing an application;
(xii)accessing the internet.”.

(d)“two-way radio” means any wireless telegraphy apparatus which is designed or adapted—
(i)for the purpose of transmitting and receiving spoken messages; and
(ii)to operate on any frequency other than 880 MHz to 915 MHz, 925 MHz to 960 MHz, 1710 MHz to 1785 MHz, 1805 MHz to 1880 MHz, 1900 MHz to 1980 MHz or 2110 MHz to 2170 MHz; and

(e)“wireless telegraphy” has the same meaning as in section 19(1) of the Wireless Telegraphy Act 1949(2).”
(2) After paragraph (6)(e) insert—

“(f)“contactless payment” means a payment made at a contactless payment terminal using the contactless payment facility of a card, mobile telephone or other device;
(g)“an application” means a software programme that runs through a web browser or offline on a mobile telephone or other device.”.

2019 Update

01/11/2019 – Update again:

In light of the below court case the Goverment (assuming that they get re-elected etc etc), have stated that they will amend the legislation to prevent the holding of a mobile phone for any purpose to close this “loophole”  by next Spring.

What form the wording of the legislation take we don’t know. We could be back round again to the original argument that a tablet without a Sim Card cannot be a mobile phone or be connected to the internet, and the anomaly that its legal to hold a digital camera or an Ipod (remember those?) but not a phone.  They have stated that no ban on hands free calling will take place.

It becomes more bizzare when you think of the many vehicles with built in touch screens, like the massive one in the Tesla,  that link to the drivers phone for things like music playback and displaying messages etc, that it’s perfectly legal to use.

31/07/2019 – Director Of Public Prosecutions v Barreto

The High Court has today handed down a Judgement, which clarifies the offence of using a mobile phone whilst driving. The conclusion is that the offence is not committed unless it is proved beyond reasonable doubt (by the Prosecution) that the phone was being used for an ‘interactive telecommunication function’ at the time of the alleged offence.

The High Court has agreed that using a function on a mobile phone which does not involve ‘interactive telecommunication’, is not a mobile phone offence.

 

Some further thoughts on this promoted by the recent DVSA release about the roll out of examiners using Ipads and suggesting that supervising drivers can’t hold “technology”.

S110 does NOT prohibit the use of “technology” whatever that is defined as?   Can you not hold a digital watch while supervising a learner?, what about an Abacus?, is that allowed but a calculator isn’t?.

As seen in the below article S110 prohibits the use of an “interactive telecommunications device”, and we see above that the recent case of DPP v Barreto  in the High Court (which is binding on all lower courts until the CPS appeal (which my souces suggest they won’t) or another case relying on this verdict is appealed to the Supreme Court) clearly established that a S110 offence only involves the sending and receiving of a message and not, for example (in the actual case) using a mobile phone to take a photograph.

The information also published in the release suggests a supervising driver may be guilty of an alternative offence of not being in a position to be in proper control of the vehicle (The S104 offence shown below) is also dubious, as the exact offence shown below makes no mention of it applying to a supervisor, just a driver, and as discussed supervisors in other categories such as motorcycles are supervisors but not in a position to take control of the vehicle and learners are allowed to be supervised in none-dual controlled vehicles where the supervisor has limited control of the vehicle. All case law suggests that supervising drivers have a duty to supervise, but I’m not aware of any that suggest they have to be in a position to take physical control of the vehicle.

I remember from my own police training there is nothing in law to state that supervising driver has to be in the passenger seat. You could be supervising driver from the rear, a position in which you could not take control of the vehicle and nothing appears to have changed in this regard with any case law I could find.

There is also the additional point to consider that if a supervising has to be able to take control of the vehicle then are they classed “driving”? If so then is a supervising driver who isn’t insured to drive the learners’ vehicle is then guilty of driving without insurance? (A supervising driver doesn’t have to be insured on the vehicle unless they intend to drive it themselves) They can’t have it both ways….

The S109 offence the DVSA cover,  by stating that a “privacy screen” will be in use. I’ve seen similar devices used on displays in Police stations in my time, which allow only the person looking directly at the screen to see what’s on it and not anyone looking from an angle.

I personally don’t use an IPAD or Tablet when teaching so I’m not seeking to defend it one way or another some seem to be suggesting the law suggests one thing when it doesn’t.