'Using' a mobile phone while driving - what does it mean and can I defend a prosecution?

Have you been stopped and told by the police that you were using your mobile phone while driving? If you have you are one of many thousands of road users stopped each and every year by the police. But what if you weren't sending a message or making a call, or perhaps you were stuck in a traffic jam? Read on for a short guide to the law on this often misunderstood offence. The law in this area is also evolving at pace so do be sure to check back in with us for updates.

A young woman holding a smartphone while being behind a wheel

The law in this area is complex. The police often don't know it properly.

The Law - using a handheld device.

Prior to 2017 using a mobile phone while driving was an offence that could have resulted in 3 points on your licence. The maximum penalty was doubled in 2017 to 6 penalty points and a fine of up to £1000 (£2500 for busses and lorries).

Currently, to be guilty of using a mobile phone while driving, the driver must physically hold the mobile phone in his or her hand, be in control of the vehicle, and using the device for 'interactive communication'. This is a reasonably well-defined set of activities that include the following:

  • Make a phone call

  • Receive a phone call

  • Send a text message

  • Send an e-mail

  • Access social media sites

  • Access streaming services

In 2020 the government concluded a review of the offence and now seek to introduce much stricter legislation to cover all interactions with a handheld device and not just those which appear to fall under the umbrella of 'communication'. By the end of 2021 it might well be that the following activities are also prohibited - this is not an exhaustive list:

  • Illuminate the screen

  • Unlock the device

  • Check the time

  • Check notifications

  • Reject a call

  • Access streaming services

  • Take photos or videos

  • Use the phone’s camera

  • Search for music stored on the phone

  • Dictate voice messages into the phone

  • Read a book on the phone

  • Play a game on the phone


What actually happens in court under the current legislation?

So what is ‘using a mobile phone' as far as the law is concerned? For the prosecution to prove the offence, they must persuade the court that the defendant was sending or receiving texts or other messages or making or receiving calls. Essentially, the driver must have been using the phone as a communication device to be guilty. Police officers will often exaggerate or mistake what they have seen resulting in witness statements that look damaging to a client.

Simply holding a phone is not using it in the eyes of the law. But police will often describe the way in which the phone was being held, whether the display was lit, and how the driver was acting to try to show that he or she was ‘using' the phone. This may be enough for the court to come to the conclusion that the phone was being used unless the law is effectively put by a defence lawyer.

The police often do not know what the offence actually entails, and as with many motoring offences, the magistrates' legal adviser or district judge can be hazy on this specific area. This means that if the accused person does not have defence evidence properly prepared in advance, and the right representative to get the message across, then the chances of the prosecution being allowed to steamroll their way to a conviction can be high.

Defence Strategy

The defend may need to provide sworn evidence from mobile phone providers who will have to provide the phone records for the number in question (this is not the same as a phone bill), auto-electrical engineers, or third party witnesses in the required format for the evidence to be admissible. When this preparation is done by an aggressive and experienced defence team, the case will often be dropped by the prosecution before it even gets to court.

If the proposed changes to the legislation come into force this year then the issues faced by a defendant appear to be be much more narrow but, as with any law, the real test will be when cases are tried in court. Be sure to check back in for updates.