Using a Mobile Phone While Driving

Mobile Phone Use While Driving | Road Traffic Act 1988 Section 41D

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Charged with using a mobile phone while driving?

The Law:

This updated guide was written on 16 September 2022. If you have been charged with using a mobile phone while driving then, depending upon when you were charged, the law may be different. If you were charged before 25 March 2022 then older legislation will apply. If you have been charged on or after 25 March 2022 then the new legislation will apply. You can read our thoughts on this here.

Persons charged under the old legislation will usually be in a stronger position. Only use for an “interactive communication purpose” will constitute the offence although, in certain circumstances, a driver could be charged with alternative offences such as careless driving or dangerous driving. Prosecution for either of the latter offences will require an appropriate warning. What constituted the offence was argued in courts on a daily basis with diametrically opposed views held by the prosecution and the defence. That issue was finally settled by the English High Court in the case of Baretto. In this case it was finally decided that only interactive communication constituted the offence. Driving while using a mobile phone to check the time, to reject a call, to scroll through music stored on the phone, to dictate a memo, take a photo and so on may be unwise but it did not contravene the legislation. Nor did simply holding a phone as opposed to “using” it.

The amended legislation is much stricter. Almost any use of the phone is now illegal, including:

  • Illuminating the screen
  • Checking the time
  • Checking notifications
  • Unlocking the device
  • Making, receiving or rejecting a call
  • Sending, receiving or uploading oral or written content
  • Sending, receiving or uploading a photo or video
  • Utilising camera, video or sound recording functionality
  • Drafting any text
  • Accessing any stored data such as documents, books, audio files, photos, videos, films, playlists, notes or messages
  • Accessing an application
  • Accessing the internet

It is clear that Parliament’s intention was to outlaw using a mobile phone while driving, at least in the context of the driver physically holding the phone in their hand. This is illustrated by “rejecting a call” constituting use, something which we consider to be arbitrary. A constantly ringing phone can be distracting so, if the mischief to which the legislation is addressed is avoiding driver distraction, this particular prohibition seems couner-intuitive. But it is the law. Interestingly, switching off your phone entirely is not included in this non-exhaustive list. We discuss that further below.


Penalties:

The penalty for using a mobile phone while driving has been in place since 1st March 2017. The penalty is 6 penalty points (or discretionary disqualification) and a fine of up to £1000 (up to £2500 if driving a passenger or goods vehicle).

For most drivers the consequences will be a fixed penalty of 6pp and a £200 fine.

If this penalty is likely to take you near to a totting up ban or to double your car insurance over the next three years, then it may be time to get in touch with us for some advice on how to proceed.

We defend mobile phone prosecutions frequently and find that almost on a daily basis we are contacted in connection with these cases.

Our expertise in mobile phone case prosecutions means that we can make a real positive impact when it comes to defending you in such a case.


Defences:

If you have been charged with using a mobile phone while driving, just give us a call today for a fee quote and a chat about your case. In terms of defences, there are two very limited statutory exceptions:

  • A driver may call 999 or 112 in response to a genuine emergency.
  • For alleged offences occurring on or after 25 March 2022, a driver may use his phone to make a contactless payment at a drive thru so long as certain criteria are fulfilled

Other than those statuotry defences, the types of defence will be determined by when the incident occurred.

If the alleged offence was prior to 25 March 2022, the Crown are required to prove interactive communication. These cases are still coming before the courts. The focus now, however, must shift to the new, far more stringent, legislation. The Crown still requires to prove its case beyond reasonable doubt but the purpose of the changes was to assist them. In the consultation document, the Government openly stated its intent “that enforcement of this offence will be much easier for the police and prosecutors”.

However there is still much than can be done. Defences to driving while using a mobile phone can be split into “legal” defences and “factual” defences. These are not mutually exclusive but it is useful to consider them separately.

In terms of legal defences, in order to prove a charge of using a mobile phone while driving, the prosecution must still prove “use”. Simply holding the phone is not enough (certain issues will require to be settled by the courts such as what constitues illuminating the screen given that many phones “self-illuminate” when picked up. Does holding an illuminated device constitute the offence? We would argue “no”).  Evidence of simply holding a phone will not, in our view, be sufficient for a conviction. A BBC headline proclaiming “Drivers to be banned from picking up mobile phones” is misleading and inaccurate. In our opinion there are two facets to the offence under the new legislation – the driver must be holding the phone in some manner and he must be using it. We anticipate there may be cases where “holding” is admitted and “using” denied. But there may also be cases where “using” is admitted but “holding” is denied. In terms of the Government’s intention, the consultation document stated that the law “will still only apply in circumstances where a driver picks up the phone to use it while driving; any change we make on the law on the use of hand-held mobile phones arising from this consultation will not affect the use of mobile phones which are positioned in a cradle and used while remaining in the cradle”. Furthermore the Explanatory Note to the new legislation provides that it applies if the device is “held in the hand whilst driving”. Clearly use of a phone in a cradle is excluded and our opinion is that this will also include instances where the phone is in a cupholder or on the seat of the car. Other questions are “what if the phone is in your lap” and so on. Our view is that the legislation does not cover that. We anticipate a plethora of cases before the issue of what is or what is not “holding” is settled.

Factual defences to using a mobile phone while driving will arise where there is a legal sufficiency but where there may be reasonable doubt as to whether the offence is committed, for example where the offence is denied or where the police evidence is of poor quality. The police can and do get it wrong. We know from long experience that the police prefer to catch drivers than to deter them and frequently hide in side streets with a limited view of the main road, trying to catch drivers out. This means mistakes are made and innocent people are accused of driving while using a mobile phone. If we feel that it would help your case, we will attend the locus and obtain video footage of the police view. If the police evidence can be shown to be unreliable, or if you give evidence and your evidence causes reaonable doubt, you should be acquitted.

We can do a lot to help you in this situation so DO NOT return any documentation until you have spoken to us and received some FREE legal advice.

FAQS

Obviously this is massively frustrating. It is also a common occurrence. Don't try and reason with the police. You are wasting your time. Instead call a solicitor. You have only been offered a fixed penalty. You have not yet been given the points and you have the right to fight the case in court. If you lose the case, you get the same 6 points. You may receive a bigger fine. You will also have had to take the time out of your schedule to attend court. If you choose to instruct a solicitor you will also incur legal fees which cannot be reclaimed even if you are acquitted. Is it worth the hassle and expense? Only you can answer that question. However an initial consultation with us costs you nothing. We will give you an honest case assessment. If you think  "its my word against the police  so what chance do I have?", part of that assessment will be to advise you on how we think we can win the case.

No, you are not. The law requires that you are using the phone. This issue was settled in the appeal case of the MSP Ted Brocklebank. If the evidence only amounts to you holding the phone then you should be acquitted. In our opinion this remains the case even under the stringent new legislation 

Unfortunately yes. Legally you are classified as driving. One would think a friendly warning would suffice in those circumstances and there are cases where sensible police officers have taken that approach. More often, however, you will be given a fixed penalty. If you refuse the fixed penalty, the policy of the Crown is to prosecute these cases although we fail to see how such prosecutions can possibly be in the public interest.

We would argue that, on any common sense interpretation of the old legislation that, no, they were wrong. We fail to see how rejecting a call can be construed as "using" the phone. The same goes for switching off the phone. The police and prosecution have argued otherwise in the past against us. We won those cases but have heard of decisions going the other way as well. Under the new legislation, however, rejecting a call does constitute using the phone. 

Yes and no. There is nothing illegal about what the police have done. They have not entrapped you into driving while using a mobile phone (if you were). Nor is there a legal rule which says the police must be visible, contrary to popular belief. However the police, by choosing to conceal themselves may have compromised the reliability of their evidence. They may, for example, have restricted their view of your car to little more than a second. Maybe less. And yet they may still claim they are certain they saw your lips moving or your thumb moving across the screen. Whenever we think it is useful we will obtain video evidence  of the police viewpoint to demonstrate just how limited it was. 

 

Nor do they need any. The evidence against you will be the parole evidence  of the officers. Video evidence is a rarity in driving while using a mobile phone cases. We do recall one case we defended where there was police dashcam footage. Fortunately for our client, it proved that the police were being disingenuous about the quality of their view and the Crown dropped the case. So the lack of prosecution video evidence is not surprising.


If you, or someone you know, has been accused of using their mobile device while driving then please do not hesitate to contact us for advice.