Using a Mobile Phone While Driving

What is the Offence of Using a Mobile Phone while Driving?

The current legislation for using a mobile phone while driving dates from 16 September 2022. You can read our thoughts on this here.

Prior to this, only use for an “interactive communication purpose” constituted the offence.  That issue was finally settled by the English High Court in the case of Baretto. In response to this, Parliament changed the law.

Case Law:

• DPP v Ramsey Baretto 2019 EWHC 2044 (Admin): Use required to be for the purpose of “interactive communication”. 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.

What Now Constitutes ‘Use’?

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
• Using the internet

Source:

• Road Vehicles (Construction and Use) (Amendment) (No2) Regulations 2022

Penalties for Using a Mobile Phone while Driving:

The penalty for using a mobile phone is:

• 6 penalty points
• A fine of up to £1000 (up to £2500 if driving a passenger or goods vehicle)
• Discretionary disqualification is competent but very unusual. There may be certain circumstances (for example, in the case of a new driver) where a disqualification is preferable

Source:

• Road Traffic (Offenders) Act 1988 schedule 2

If a fixed penalty is offered and accepted, the penalty will be 6 points 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:

Statutory defences

• A driver may call 999 or 112 in response to a genuine emergency.
• A driver may use their phone to make a contactless payment at a drive-thru, so long as certain criteria are fulfilled

The prosecution must still prove “use”

• Explanation: simply holding the phone is not enough. Even if it is illuminated, many phones “self-illuminate” when picked up
• Defence: 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.

Driver not physically holding phone

• Explanation: the driver must be holding the phone in some manner and must be using it
• Defence: the alleged use is when the phone is in its cradle/is on the centre console etc. The required “holding” facet is not fulfilled

Sources:

• Using a mobile phone while driving/Consultation on Changing the Law/Department of Transport: This states 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”
• Road Vehicles (Construction and Use) (Amendment) (No2) Regulations 2022: the explanatory note provides that the law applies if the device is “held in the hand whilst driving”

Factual defences

• Explanation: even when there is a legal sufficiency, the Crown must still prove its case beyond reasonable doubt. This applies to both the “holding” and “using” facets.
• Defence: the police can and do get it wrong. Police often prefer to catch drivers rather than deter them. Police frequently hide in side streets. Mistakes are made and innocent people are accused of driving while using a mobile phone. If we feel it helps help, we attend the locus and obtain video footage of the police view.

Five Reasons to Instruct Us:

Reason 1 – We Are The Pioneers

Since our inception in 2001, when our founder Graham Walker (pictured) identified a critical gap in the Scottish legal market, we have pioneered how to defend charges of running a red light. Other firms also claim this. But see when the domain was registered to see how long the firm have actually been online. Our domain was registered in 2001. We believe we were registered years in advance of any rival firm. We are invited, founder members of the Association of Motor Offence Lawyers. Graham’s founding principles of specialisation, expertise, communication and client dedication remain central to the firm and to the defence of any red light charge.

Reason 2 – Our Statistics 

We base our success rate on 1000 independently analysed cases chosen at random. Other firms may claim even higher success rates but do not simply accept them at face value. Ask them what their case sample size was. How do they define case success? We have successfully defended sports stars, famous personalities, peers of the realm, members of the Royal Family, fellow solicitors, advocates, leading QCs and police officers. We do not name names unless the case is already in the public domain but you can see some of our reported cases here.  As we helped them, so we can help you.

Reason 3 – Our Independent Reviews

All of our quoted reviews are reviews posted on independent review sites such as Trustpilot and Review Solicitors.

Review Solicitors Reviews

Trustpilot Reviews

Reason 4 – Our Fixed Fee

We guarantee a Fixed Fee. It does not change no matter how often we need to attend court. There is no small print. There are no hidden costs.

Reason 5 – Nationwide Representation 

Although our offices are in Glasgow, we regularly defend motorists in every Court in Scotland. On any given month, our solicitors appear in courts across the country, including Aberdeen, Dumfries, Edinburgh and Paisley. Wherever your case is being heard, we have the experience and resources to represent you effectively.

 Call: 0800 048 8696

Frequently Asked Questions (FAQs)

Call: 0800 048 8696