Is it an offence to hold a mobile phone whilst driving?

24 October 2017

Driving whilst using a mobile phone is one of the most commonly prosecuted Road Traffic Offences in Scotland, and one of the most common queries we get from clients is whether or not it is an offence to simply hold a mobile phone whilst driving?

In general terms, simply holding a mobile phone is not an offence in itself. This offence itself is covered by Section 41D of the Road Traffic Act 1988 and Regulation 110(1)(a) of the Road Vehicles (Construction & Use) Regulations 1986. The provisions themselves are lengthy but generally to be guilty of this offence you must be holding a mobile phone or device whilst driving AND using the device to communicate with another person or device or to access the internet. It’s important to note that the rules equally apply if you’re stopped at traffic lights or queuing in traffic. It is also possibly that if police think you’re distracted and not in control of your vehicle as a result of using your phone, and this has caused you’re driving to fall below the standard expected of a reasonable and competent driver, the crown may look to prosecute for careless or even Dangerous Driving! (Please see our section on Dangerous Driving for the consequences of conviction for this)

So what counts as a “hand held device”? For the purposes of the regulations a mobile telephone or other device is to be treated as hand-held if it is, or must be, held at some point during the course of making or receiving a call or performing any other interactive communication function. “interactive communication function” includes the following:-

(i)sending or receiving oral or written messages; (ii)sending or receiving facsimile documents; (iii)sending or receiving still or moving images; or (iv)providing access to the internet; This can therefore be said to cover Facebook, Snapchat, Twitter etc.

In terms of the legislation then it would therefore seem that you can use hands-free phones, sat navs and 2-way radios when you’re driving. But in our experience police officers often misunderstand the law on this matter, and simply refute a driver’s protests or attempts to exonerate themselves- leading to many unnecessary prosecutions.

So you can see what appears to be a simple and straight forward offence can be extremely complicated when applying the law.

In the first instance drivers will usually be offered the chance of a Fixed penalty for £100 and 3 penalty points, which can simply be paid without the need to attend court. However, if this is ignored and you subsequently receive a court summons then the consequences of conviction become far more severe, with the courts able to impose a fine of up to £2500 and even disqualify drivers found to be on their phone.

There are however instances whereby the driver will be permitted to use their mobile phone, such as in the event of an emergency, but it will be for the defence to establish that the circumstances amount to a defence in terms of the legislation and the case law.

But help is at hand. One of the most common misconceptions is that the court will always prefer the evidence of two police officers- this is simply not the case. There is an art to successfully challenging a cases of this nature, and it is therefore of the upmost importance that if you are prosecuted for driving whilst using a mobile phone that you get a specialist Road Traffic Lawyer who knows the law. Our specialist Road Traffic team have a proven track record of getting result, and know what it takes to get you the result. Contact us today if you have been charged with this.