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“I was recently represented by Kang & Co Solicitors for a drink driving charge. From the initial telephone call it was clear that Kang & Co were experts in this field. They provided sound advice and diligently guided me through the process leading up to the court case. Through their legal representation I was able to avoid a community order and receive the best possible outcome for my case .”

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Kang & Co Solicitors is a truly specialist high-end law firm providing legal advice and representation for all matters involving Criminal Law and Driving Offences. We are ranked as a top tier law firm by The Legal 500 and Chambers and Partner’s prestigous law guides.

Our head office is located at 1 Victoria Square in Birmingham City Centre and we offer our services throughout England and Wales on a private fee-paying basis. We also have an office at 330 High Holborn in London and another office in central Milton Keynes. We are frequently instructed by individuals and businesses nationwide.

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Birmingham Office

1 Victoria Square
West Midlands
B1 1BD

330 High Holborn Kang and Co Solicitors London

London Office

330 High Holborn

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Milton Keynes Office

The Pinnacle
Midsummer Boulevard
Milton Keynes

Business Hours

Monday – Friday
09:00 – 17:00
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Meetings at our offices are by Appointment Only

Using a Mobile Phone Whilst Driving: What is The Current Law?

by | Oct 26, 2023 | Articles, Driving Offence Advice

In today’s digital age and the era of smartphones and constant connectivity, mobile phones have become an indispensable part of our lives.  We can now do almost anything with our phones such as controlling the temperature and light switch at home, compiling a playlist for that annual road trip, or listening to your favourite podcast on your morning commute. Whilst the convenience and entertainment they offer is wonderful, the negative side of phone usage is that this often tempts drivers to use them whilst on the road, leading to dangerous distractions and accidents.

To mitigate this risk the UK Government took a significant step towards enhancing road safety by implementing strict laws and regulations to govern mobile phone usage whilst driving. This article explores the legal framework, penalties for violations and what options you have when facing such a charge.

Legal Framework

To combat the dangers of mobile phone use while driving, the UK has established a comprehensive legal framework.

Since 2003, it has been illegal to use a hand-held mobile phone or similar hand–held device while driving in the UK. However, as the years have progressed, mobile phone devices are now far more capable of performing simple tasks such as making phone calls and texting. Due to the multitude of functions a mobile phone now has, the Government realised the wording of the offence no longer applied to modern devices which had outgrown the parameters of the legislation.

In the recent judgment of the High Court case, DPP v Barreto ruled that it was not an offence for a driver to be caught filming a crash on his mobile phone. The driver of the vehicle in this case had filmed a road accident whilst behind the wheel. The reasoning behind why he was “not guilty” of using a handheld – mobile phone was because he had not been using the phone for “Interactive communication” and was therefore outside the scope for the offence to have been committed.

Owing to this, the UK Government consulted on changes to the law considering that all use of a hand–held mobile phone while driving is dangerous and not just for the purposes of making a call or texting.

In 2022, the Government introduced a Statutory Instrument (SI) amending the Road Vehicles Regulations 1986. This SI effectively introduces a zero-tolerance policy where mobile phones are concerned which means that even the act of simply holding a device will trigger an offence being committed. This is regardless of whether the functionality of the phone is enabled, so stating your phone is in “flight mode” will not be a defence.

Since 2022, the new legislation provides an expanded list where the meaning of “using” a phone is concerned and now includes the following:

  • Illuminating the screen
  • Checking the time
  • Checking notifications
  • Unlocking the Device
  • Making receiving or rejecting a telephone or internet-based call
  • Sending, receiving or uploading oral or written content
  • Sending, receiving or uploading a photo or video
  • Utilising camera, video, or sound recording
  • Drafting any text
  • Accessing any stored data such as documents, books, audio files, photos, videos, films, playlists, notes or messages
  • Accessing an app
  • Accessing the internet

    Any Exemptions?

    There are a minimum amount of exemptions where using a phone is permitted. Many road users rely on their phone as a satnav and this is allowed provided it is in hands-free mode, placed in a cradle and set up before the journey begins.

    Use of your mobile is also permitted if you need to pay for food when using a drive-through or at a toll station. The payment can only be made if your phone is used against a card reader and online payments are not permitted.

    Lastly, the regulation has provided for use of a mobile phone in emergency situations where the police, ambulance or fire brigade need to be called.


    Do I have a Defence?

    There will be instances, where a driver will want to challenge the case against them, particularly if they were not using their mobile phone and believe the police are mistaken. If this is the case, it is your right to have a fair trial, and recommended you seek advice from an motoring law expert who can advise you on your options.


    Penalties for Violations

    The penalties for violating the ban on mobile phone use while driving are significant, and reflect the seriousness of the offence. If you are caught using your mobile phone you can expect the following penalties:

    1. Six Penalty points – This is the MINIMUM number of points you can expect to receive should you give into the temptation of your mobile and fall foul of the law.
    2. A minimum fine of £200 – If caught using a mobile while driving, in addition to incurring six penalty points, you can also expect to receive a fixed penalty notice of £200.
    3. Attendance at Court – There are some instances where accepting a fixed penalty notice fine of £200 and incurring 6 points is not enough, if your driving record negates the need for attendance at Court you could be required to attend and in these circumstances, a £200 fine and 6 points will be the least of your worries. If the matter is progressed to Court, you could likely receive a period of disqualification from driving or even revocation of your licence if you are a new driver. Financially the burden of a fine can reach up to £1000 or even £2500 if you were driving a lorry or a bus at the time of the offence. In addition to a steep fine, you can also expect to foot the bill for the prosecution costs of the case being brought to Court.

    It is important for motorists to be aware that driver awareness courses for use of a mobile phone do not exist as they do for those caught speeding for the first time. This is a strict liability offence and attracts a harsh penalty for contravening the law.


    New Driver Implications

    Where new drivers are concerned, the first two years of driving are considered as the “Probationary Period” and new drivers are governed by the Road Traffic (New Drivers) Act 1995. During this time, any new drivers who accumulate 6 points on their licence will expect the gloomy outcome of revocation of their licence. However revocation does not end there, in order to get back in the driving seat, a full retest of both the theory and practical exam must be taken. This can in turn be costly, time consuming and frustrating due to the denial of the new found freedom that has been snatched away as punishment.

    This means, as a new driver, if you have already accumulated a low number of points on your licence, or have no points at all, getting caught with a mobile phone will have a significant impact on your ability to drive as your licence will simply be revoked. In order to avoid this outcome, there are possible avenues to explore, these however depend on a case-by-case basis and it is therefore vital you contact an expert motoring lawyer before responding to any form of Notice of Intended Prosecution (NIP) or accepting a Fixed Penalty Notice.


    Implications for Drivers with Penalty Points

    If you find yourself as a driver with a colourful driving record and have collected a significant number of points already, you may be at risk of being disqualified from driving for at least 6 months.

    In the UK, a driving licence can hold up to 11 penalty points. However at the point a driver stands to receive 12 or more penalty points, they will be considered a “Totter,” this name derives from the result of “totting up” penalty points. The Courts will therefore seek to disqualify the individual from driving unless a successful Exceptional Hardship Application has been advanced.

    An application for Exceptional Hardship is where mitigating reasons are presented in order to persuade the Court not to disqualify an individual from driving. Such applications involve the expertise of a motoring law expert who can identify what factors in your life could assist with making a strong application to the Court. The application itself is however subjective and the threshold of what is considered as exceptional hardship is set high. Nevertheless, consulting with a motoring law specialist will be the difference between finding yourself disqualified from driving or being able to continue driving.

    The prohibition of mobile phone use while driving in the UK has contributed to a reduction in accidents. Additionally, technological advancements have also allowed for better detection and enforcement of this law making it far easier for detection and road users being caught which in itself is fast becoming a deterrent.

    Whilst the imposition of strict penalties work towards raising public awareness and responsible driving practises, the impact of such penalties can cause significant change to your life particularly if you are subject to new driver regulations or at risk of being disqualified from driving.

    The impact can have a domino effect on your livelihood particularly if you are the main breadwinner in your family or rely on your ability to drive for the purpose of your career. In these circumstances, it is imperative you therefore contact us immediately in order to discuss your case in detail and establish whether there is an opportunity of avoiding such life changing outcomes.

    Do you require legal advice &/or representation?

    If you are facing a driving offence prosecution and require expert legal representation at Court, call our lawyers on 0330 818 9843 or complete our Contact Form.

    Using a Mobile Phone Whilst Driving in England and Wales UK mobile device driving motoring offence

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