Using a mobile phone while driving

About Using a Mobile Phone Whilst Driving Offences

It is an offence to use a mobile phone while driving. You also commit an offence if you cause or permit someone to drive a motor vehicle on a road whilst using a hand-held mobile telephone or specified device.

If you are supervising a provisional licence-holder you commit an offence if you use a phone while driving.

The police may charge drivers with not being in a position to be in proper control of a vehicle. We can help with this offence too.

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The legislation

The law is contained in Section 41D of the Road Traffic Act 1988 and Regulation 110 of the Road Vehicles Construction and Use Regulations 1986. The Road Safety Act 2006, which came into force on 27 February 2007, created a specific offence in relation to the use of mobile phones and handheld devices.

At that time, mobile phones could perform only a handful of the functions now possible. As such, the legislation was drafted to include the following interactive communication functions:

  • sending or receiving oral or written messages;
  • sending or receiving faxes;
  • sending or receiving still or moving images; and
  • providing access to the Internet.

For example, there was no reference to using a mobile phone to play music, take pictures, or make recordings. This then left the courts to interpret the legislation on their own – with very inconsistent results.

Many magistrates’ courts concluded that the purpose of the legislation was to prevent the phone being used for any purpose while driving. This meant that little regard was had to what function was being performed by the phone whilst it was held by the driver.

It also made it very difficult for legal professionals to advise clients on the prospects of success if they wanted to put forward a defence of not using a phone for an interactive communication function.

For more information, please see our FAQs on using a mobile phone while driving, below.

Using a mobile phone while driving Summary

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Legal Definition

Driving a motor vehicle on a road whilst using a hand-held mobile telephone or a hand-held device. The phone or device will be handheld if it is actually held at some point during the course of making or receiving a call or of performing any other interactive communication function. An interactive communication function includes sending or receiving messages, faxes or pictures or providing access to the internet.

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Main Legislation

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Fine

£2,500 in passenger or goods carrying vehicles. £1,000 in other vehicles.

Court Magistrates only (unless an appeal)

Imprisonable? No.

Do you need help protecting your driving licence?

Talk to us today about how we can help you with your driving offence.

Interactive Communication Function

A mobile device must be used to perform an interactive communication function by transmitting and/or receiving data, to constitute as an offence. For example, making or receiving a call, sending or reading a text message or accessing the internet.

Until very recently the law was unclear about what constitutes an interactive communication, but this has been clarified in the recent case of DPP v Barreto 2019. This case made clear that ‘interactive communication’ requires the phone or hand-held device to be used to communicate data externally. This is different from interacting with the internal workings of the phone, for example by selecting music or taking a photograph.

It is for the prosecution to prove that you were using the mobile phone or handheld device to perform interactive communication.

Many driving offences can be committed on a road or public place. However, this offence can only be committed on a road.

Alternative Offences

Of course, this does not mean that drivers are free to use their phones while driving for non-interactive communication functions, because there is the risk of prosecution for a different offence. This will depend on the circumstances, but alternative offences include driving whilst not being in proper control of the vehicle, careless driving and dangerous driving.

For more information, please see our FAQs on using a mobile phone while driving, below.

If you would like to know more please contact us today.

Relevant Cases

Using a Mobile Whilst Driving Offence FAQs

Can I go on a driver awareness course for using a mobile phone?

No, the option of a driver course was removed in 2017 when the minimum number of points increased to 6.

What if I picked the mobile phone up while driving, but didn't perform an interactive communication function?

Then no mobile phone offence has been committed, but, if a police officer saw you pick up the phone, you’ll have to explain what you were using if for. The prosecution will then have to prove that you were using the phone or handheld device to perform an interactive communication function.

You may still be guilty of other offences such as not being in proper control of the vehicle, careless or dangerous driving. This will depend on the circumstances.

Will I be sent a Notice of Intended Prosecution (NIP) for using a mobile phone while driving?

There is no legal requirement for the police to send a NIP for the offence of driving while using a mobile phone.

However, the police will often send one together with a s.172 request for driver details. Failure to give those details could mean you are guilty of failing to provide driver details, which is a different offence with similar penalties.

What if I'm a new driver and I am caught driving using a mobile phone?

If you’ve passed your test less than two years ago and you receive six more penalty points, DVLA will revoke your licence. To have a chance of retaining your licence, you need to decline the offer of a fixed penalty and have the matter dealt with by the courts. Due to the risks involved, we wouldn’t advise you do this without first taking legal advice.
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