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Using a mobile phone whilst driving is an offence under Reg. 110(1) of the Road Vehicles (Construction and Use) Regulations 186, section 41D of the Road Traffic Act 1988.

This carries 6 penalty points and is treated seriously by the courts.

(Already got 6 or more active penalty points? Read our guide on Exceptional Hardship.)

There has been a lot of misunderstanding as to what the law means when it talks about ‘using’ a mobile phone. It had been argued by some that even holding a mobile phone made you guilty of this offence. This is not the case; you have to be using it for communication. This can include texting, calling or browsing the internet.

A recent case was taken to the Crown Court appealing against a Magistrates Court decision to find someone guilty of the offence.

The defendant was “using” his iPhone to change a track on Spotify that he had previously downloaded onto a playlist. This required no internet connection because the tracks had already been downloaded onto the playlist. It was not being streamed live to his phone.

The Prosecution argued that by doing anything physically to the handset, he was performing an interactive communication function between himself and the device and he was communicating with it. The defendant argued that the law did not penalise the use of an iPod – which had no external interactive capability – where the driver was using the identical physical actions.

The court agreed with the defence and said that if the law intended to prohibit any physical operation of the handset by the user it could have been drafted in simple terms without mentioning interactive connectivity and defining what this meant. They gave as an example if a phone was dead, and simply being used by the driver to scratch his head, then, despite the fact that it previously could have been used as a phone this would not breach the law.

They went on to say that the same would apply to checking the time from the device’s internal memory, or even making adjustments to its internal working system.

The allowed the appeal and the defendant was not punished. It is important to remember that this is only a Crown Court decision so other courts aren’t forced to follow it but it is unlikely any Magistrates Court would refuse to follow it.

The police do have the option of charging a driving with careless driving instead, they would then have to prove that the manner of driving was below the normal standard and this would depend on the circumstances. It is also worth remembering that you can be guilty of using a mobile phone even if you are not moving, if for example you are texting or talking whilst stopped at a red light.

If you have been charged with using a mobile phone and you think you have a defence it is important to seek expert legal advice as soon as possible.

Call us on 01623 397200 for a free initial assessment of your case.


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  • Private Prosecution