By the end of the month drivers must stop using hand-held mobile phones while driving. David Faithful explains what brokers should be advising their fleet clients

Should hand-held mobile phones be banned in fleet vehicles?That's the question vexing many of the nation's fleet managers. Legislation banning the use of hand-held phones while driving takes effect on 1 December. After this date, a driver caught using a hand-held mobile phone, will face a fixed penalty of £30 and three penalty points, if contested unsuccessfully the fine can be increased up to £1,000.The legislation is an attempt to reduce accidents, but it is going to completely miss the target so far as drivers are concerned. The public is now buying hands-free kits as if they were going out of fashion in order to maintain their habit after 1 December, a move which is being actively encouraged by the mobile phone industry. And the police will find it practically impossible to prosecute a driver unless they can actually see him holding a phone to his ear.Watered down
The original consultation suggested that all phone use would be banned if it involved touching the phone at all. This now seems to have been watered down. Instead, a phone situated in a cradle can be used provided it has a separate microphone and speaker. In essence, you must not be physically connected as in the case of a wire and earpiece. Headsets connected via a radio link - the Bluetooth system - appear to be exempt, as are in-built systems fitted by vehicle manufacturers. It seems that touching the phone to answer or make a call is permitted regardless of the distraction element provided you are not holding the phone in your hand.The only occasion that you may use a hand-held mobile phone is when to stop would expose you to danger, as in a road-rage incident. Strangely, you are not allowed to use a hand-held when the vehicle is at rest such as in a traffic jam. For those of us who regularly use the car park known as the M25, one wonders how many will resist the temptation to phone ahead if delayed and what the police attitude would be if they observe you doing so.Predictably, two-way radios operated by a microphone push button are excluded, mainly to ensure that the emergency services can function after the 1 December, this also assists the taxi industry.Managers' consciences
Should fleet managers ban mobile phone use while driving? My answer is always yes, on the grounds of the health and safety of both their drivers and anyone else they interact with on the road. However, it is up to the fleet managers' consciences as to how they direct their drivers. If they choose to issue hands-free kits or sanction phone use, either indirectly by ignoring that it happens or directly by requiring their drivers to be in constant contact, they may one day have to face the consequences. This could mean joining them in a prison cell if a serious accident results in a prosecution.Whatever option a fleet manager chooses, the work activity will have to continue; consequently the choice should be based on what is practical, not what is desirable. We now live under the shadow of the Health & Safety Executive (HSE) work-related road safety guidance. Consequently, a risk assessment should be undertaken and a policy should be produced so that both the fleet manager and the driver are aware of the ground rules. Finally this policy should be monitored and audited. Mobile phone use is yet another piece of legislation to be tackled by overworked fleet managers. As long as it is tackled sensibly with a suitable audit trail of how the risk was addressed then there is nothing to fear. But you ignore it at your peril.Police sources say that the legislation is not likely to act as a deterrent. A number of senior police officers have already announced in advance of the legislation that in the event of a life-changing incident, they will automatically seek mobile phone records to see if a phone was in use at the time of an accident. If so, then the driver will be prosecuted as a consequence of the likely distraction. If a fleet driver was involved then his employer will also be prosecuted for aiding and abetting the offence. Does this come as a surprise to any of us now that the police are armed with their ACPO investigation of road death manual?David Faithful is a partner and fleet legal specialist at Amery-Parkes

Why have drivers been banned from using hand-held phones?There has been over the past few years a growing body of evidence suggesting that a number of accidents are occurring due to driver distraction while using a mobile phone.The case of truck driver Paul Browning is one example. He was involved in a fatal accident while using his mobile phone to compose a text message. He was imprisoned for five years.Lord Woolf and the Court of Appeal pronounced this summer that use of a mobile phone while driving would amount to an aggravating factor if charged with causing death by reckless driving. Such an aggravating factor would inevitably result in a prison term.The police have for some years taken the view that use of a mobile phone while driving was sufficient to support a charge of not being in proper control of a vehicle.Additionally, a number of academic institutions have concluded from their studies that the distraction element of trying to hold a phone conversation while driving reduces the driver's ability to that of a novice, regardless of their driving experience.In light of this evidence the government felt compelled to act by introducing legislation to ban hand-held mobile phone use.However, it stopped short of a total ban on phone use while driving, notwithstanding the weight of evidence that what causes accidents is the distraction element, not the holding of a phone.