For most offences, the courts have to decide what Parliament intended or did not intend, based ostensibly on the wording of the legislation.
There is a general rule that courts must start with the presumption that Parliament did not intend to punish a given action unless the wording of the legislation convinces them otherwise, and that any ambiguity must be construed such that the action is not punished. No, really.
For drink driving, to pick a poor example, if a driver stop briefly, his level of intoxication does not materially change, so there would seem to be little material distinction as to whether he was actively driving the vehicle or sat in the back of the police car blowing into a tube when he is sat in the back of a police car blowing into a tube.
Did Parliament really intend that a driver who checks his phone briefly when he knows he will be sat at the traffic lights for a minute with the handbrake on should get 6 points - the same as a driver who is texting while driving past a school at 3.30? I would say not, but some would disagree.
However, Parliament's intention is not the only question (unless it is decided that Parliament agreed with me). If the device was being used to receive or share ideas or information, the qualified right to do so without interference by public authority under Art 10.1 ECHR is engaged. The question then becomes whether it is necessary and proportionate to restrict such rights in such circumstances to protect the rights or safety of others.
Not only does "it's the law" not in itself cut it, any justification for the restriction must be necessary and proportionate.
As regards texting while driving past a school, absent the most contrived emergency which would be covered by the statutory exceptions anyway, it would be very hard to argue that the restriction was not necessary or proportionate.
When sat at the traffic lights, there are arguments that might support Parliament intending to prohibit such behaviour (while still permitting a conference call if operated hands-free), but the hurdle for finding that such a restriction is necessary and proportionate is higher.
We hear that there have been numerous failed defences of not driving in mags' courts. I have not seen or heard the content of any such defences, or whether they sought to argue Art 10.1/HRA.
N.B. I would further argue that where such behaviour can potentially become problematic, but does not inevitably become so, there is no necessity for the specific restriction where a more general provision prohibiting the causing of the problem could readily be used. For example, if the argument is that a person briefly checking his phone might potentially then become entangled in some work issue that resulted in him not pulling away promptly and holding up those sat behind him at the lights - is there any good reason why the offence of driving without due care and attention/consideration if it did cause that?
Research shows that the distraction from using a phone lasts for up to 28 seconds after the phone use stops, the less complex the use, the lesser time it takes to 'recover'.
It could be argued that making a hand held call is no different to a hands free in that respect, however more complex interactions like browsing 'socials' or using WhatsApp are different.
There is also the congestion impact as people using a phone react slower (the 'WhatsApp gap') thus may increase congestion by allowing less cars to pass a junction per cycle.
In other words there are a number of benefits which may have been intended by parliament that may suggest they did intend, and for a reason, to prohibit phone use while stationary. There is also the issue of trying to prevent drivers who are using it stationary from moving off 'while' they finish and put down the phone, like the one I saw drive into the back of the car in front just yesterday as it had moved and stopped and he 'pulled away' straight into the back of it while still 'disengaging' from the phone.
For example, if the argument is that a person briefly checking his phone might potentially then become entangled in some work issue that resulted in him not pulling away promptly and holding up those sat behind him at the lights - is there any good reason why the offence of driving without due care and attention/consideration if it did cause that?
There are plenty of road traffic laws intended to prohibit behaviour before it leads to anything harmful. The classic being "drunk in chrge" or whatever the correct term is. It could be argued that no possible harm can come from being in charge, unless you start driving in which case drunk driving could be used.
That could be extended to traffic sign contraventions as well. The act of passing a red light doesn't in itself cause harm, nor does exceeding a speed limit.
Drunk in charge is a specific offence, so Parliament's intention was very clear. However, taken to the exrtreme I could be prosecuted every time I walk 2 miles to the pub and have a few pints as my car key would be with me as it lives on the same ring as my house keys.
To suggest that passing a red light does not in itself cause harm, is, on the face of it at least, utter bollox. It often does not cause harm, but sometimes does.
None of these examples concern the definition of driving. You cannot drive past a red light while stopped at the lights.
The big difference between the examples above and Cycling Mikey sticking his head in car windows when cycling past a queue of stationary vehicles at the traffic lights, for such examples, it matters not whether the application of the law is proportionate and necessary in that case, the law is the law. Where qualified convention rights are involved, if the restriction is not necessary and proportionate, it must be read in such a way as to uphold the qualified right (except where the wording of Primary legislation is such as to make this impossible).
I would suggest that most motoring laws legislate against everything that has minimal risk as someone above suggested, breaking the speed limit per se isn't dangerous except in some circumstances. Crossing the road can be very dangerous, but most times isn't. Driving on a bald tyre can be dangerous, but usually isn't. Having the wrong number plate font is in no way dangerous to anybody except the feds who need it to ID your car. Everything we do on a road can be dangerous, but in most cases isn't. But my view is that an increasing number of cases using a mobile phone causes more danger to other road users as it takes attention away from the road for too long. Being higher up when driving my bus than most car drivers, it's worrying to see how many car and van drivers use mobile devices when driving.
The bus companies I drive for expect me to read messages from the control room that pop up on the ticket machine or iBus radio. The former means glancing across at the ticket machine, the iBus radio on the TfL buses is fitted in the top of the cab and requires the driver to move his view to the cab ceiling instead of the road in front. They are both mobile devices but don't AFAI work on the prescribed frequencies and they are fixed devices.
if the restriction is not necessary and proportionate, it must be read in such a way as to uphold the qualified right (except where the wording of Primary legislation is such as to make this impossible).
I did give 2 reasons why it was 'necessary and proportionate, but to recap
1/ Testing has shown that the distraction lasts for up to 28 seconds after the phone engagement, so putting it down just before you pull away in traffic means you are still distracted.
2/ (split out from 1 here) There is still an argument it is proportionate in preventing 'distracted pullaways' where people disengage as/shortly after they start moving (with an equivalence to the drunk in charge mentioned)
3/ Even if you ignore those two, there is an impact on congestion where drivers who are distracted frequently are slower to respond to traffic light changes (the 'whatsApp gap' as it's often called), if you lose one car progressing through a junction, that extra one car in the queue stays (at congestion prone junctions) for a long term (end of rush hour or even all day), repeat that multiple times and you increase congestion (longer journey times, increased pollution) for many hundreds of road users.
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