Tuesday, 14 August 2012

Law report - Using hand-held devices while driving

Farnworth v R [2012] SC (Bda) 36 App (20 July 2012)

The Appellant had been convicted in the Magistrates' Court of using a hand held device (an iPod) while driving a motorcycle, contrary to regulation 44 of the Motor Car (Construction, Equipment and Use) Regulations 1952. There was no evidence that she had touched the device with her hands whilst driving.

The decision of the Magistrate was upheld, as listening to an iPod via earphones amounted to "use" [17]-[18], [20]. Kawaley CJ mooted whether the enactment was a disproportionate response to objectively identifiable public safety concerns, a question that he suggested might arise in a constitutional complaint regarding the right to receive information and ideas under section 9 of the Constitution [21].

Comment - this was a conviction of a motorcyclist. It is unclear whether a car driver who has plugged a hand-held device into a car audio system, in the same way that one might insert a CD, would also be liable. For example, the music would be turned on or off via the dashboard controls, rather than having to handle the device. Is he using the device, or merely using the car's audio system?

Liability is even less clear if there is a passenger in the car who has control of the hand-held device plugged into the audio system. Presumably the driver could claim that it is the passenger using the device, but this is still open to interpretation.

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