Mobile Phone Driving Offence Solicitors

Caught driving with a mobile phone

There are very few criminal offences that are misunderstood in the same way as mobile phone offences. Lack of training and recent changes to legislation has created a culture of confusion and misapplication within the police force. 

Driving with a mobile phone is an offence that carries 6 penalty points and a fine. Whether you plead guilty at the outset, or challenge the case to court, you can only ever receive 6 points and a fine. The points remain on your licence for three years (from the date of conviction). If a motorist accrues 12 or more penalty points within a 3 year period, they are automatically subject to a 6 month driving ban (unless the court finds exceptional hardship). For this reason, most people prefer to check the evidence against them. Many are surprised to find it doesn't exist.

How to defend a mobile phone case

Why wasn't I offered a mobile phone course?

Mobile phone courses were abolished in 2017 when the number of penalty points for this offence increased to 6. We continue to hear reports of police officers informing drivers that the course will be offered to them! You can imagine the shock when a driver then receives a Conditional Offer of 6 points and a £200 fine! You can avoid the penalty points by finding fault with the evidence and winning the case. It doesn't matter if you 'admitted' the offence at the roadside.

If you've been charged with a mobile phone offence, there are two important questions to consider;

1. What is the legislation being used to prosecute you?
2. Have you seen the evidence against you?

What is the legislation being used to prosecute you? 

It is likely that you have been charged under Regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986 (the first page of the summons will state the law used). This is good news because since this law was introduced there has been considerable uncertainty as to what it actually means! 

The actual offence occurs when a person is driving a motor vehicle on a road and is holding a mobile phone. The legal position is that a mobile telephone is deemed to be hand held if it is actually held at some point whilst using the device. If the device is not touched then this offence has not been committed. Most cases fall on the 'eye witness' account of the police officer. 

Please remember that you are entitled to challenge what the officer claims to have seen. Was it definitely a phone or could it have been an MP3 player? Was it you holding the phone or could it have been a passenger?

Have you seen the evidence against you? 

You're probably wondering 'how can the police prove i was on my phone?'.

In order to achieve a conviction, the prosecution must prove (beyond doubt) that;

• You were driving the vehicle
  You must be driving the vehicle at the time of using the device. Even if the vehicle was stationary the police may argue that you were still driving it. However, you could argue that you had stopped the vehicle to use the device, even if you were in front of/behind other vehicles. Remember that the CPS must prove that you were driving - this is made much more difficult if the vehicle was stationary. 
• On a road 
  The location of the vehicle being driven must have all the usual characteristics of a road. This offence may not be committed on private land or a car park. Public 'access' is only one factor when determining whether a location is public/private. Other factors, such as the purpose of the land and its ownership may also be relevant. 
• Whilst using
  There is no statutory definition of 'using'. In our experience, it would have to involve you touching or holding the mobile phone. Even then, an offence may not have been committed. 
• A hand held telephone/device 
  It must be a device which is capable of making or receiving a telephone call or an 'interactive communication'. An MP3, iPod, Satellite Navigation or a remote control would not usually constitute a device for these purposes. Could the officer have mistaken an MP3 (or any other device) for a mobile phone?

The 'iPod' defence

Lots of our clients are accused of using mobile phones by vigilante pedestrians and cyclists. Some even film the alleged offences and upload them to Youtube!

Since the law changed in 2022, fewer motorists are being pulled over for this offence. This is because the police no longer need to prove that a phone call was being made or received, only that the motorist was holding the device. They wrongly assume that evidence of 'use' is sufficient (such as an officer witnessing a device being held or video footage from a passing cyclist).

In most videos that we receive from the police, a driver can be seen tapping a device and using a thumb to scroll. You would assume, wouldn't you, that in these circumstances you're bang to rights? But what if the device you were using was not a mobile phone and could not access the internet or use data? Most drivers aren't pulled over and spoken to. Most videos don't show a driver speaking into a phone or holding it to their ear. What if the device being held was an MP3 or classic iPod? iPods are almost identical in shape, size and colour and they're operated in a similar way to mobile phones. How do the police now prove, beyond doubt, that the driver was using a phone? The answer is, they can't. 

If you were using a an iPod, or similar, whilst driving, you are not committing an offence under Regulation 110 (providing the device cannot access the internet or use data). Even if you were using a mobile phone, you are entitled to ask the CPS to prove that it was, in fact, a phone. Without direct proof, you should not be convicted. 

Penalty for using a phone while driving

Using a mobile telephone whilst driving carries 6 penalty points and a fine. You should therefore ask yourself, ‘what do I have to lose by challenging the evidence?’. If you plead guilty and accept the fixed penalty you will receive 6 points on your licence (and a likely increase in insurance premiums). If you plead guilty after seeing all the evidence against you (this may take several weeks or months to obtain), you will still only receive 6 points. Even if convicted after a trial you still only receive 6 points.

Getting you 3 penalty points

As a specialist motoring defence solicitor, I spend a lot of time negotiating with the CPS to reduce charges. One option - if the evidence checks out - is that we explore a 'basis of plea'. It is an offence under the same section of the regulations to drive a motor vehicle without proper control. This may sound worse but it actually carries 3 penalty points. In my experience, the CPS are often willing to accept a plea to this offence because it avoids the need for a trial (and the costs that come with it). For a new driver, or a driver who is close to a ban, this strategy can work really well. There is a process in place to organise the basis of plea and we're happy to explain it to you. 

Using a mobile phone whilst driving first became an offence in 2003. For many years the penalty for committing this offence was 3 points and small fine. In 2017, the penalty was increased to 6 points and a £200 fine.

Now you are more aware of the elements of the offence, let’s consider the evidence against you. As noted above, you should have been sent a copy of the witness statement from the police officer who apparently saw you ‘using’ the hand-held phone. Most statements that I see simply refer to ‘holding’ a phone (because this is what the officer believes he saw). The officer may say that he saw you ‘using’ the phone but this is much more difficult for him to prove.

Don't just assume you will receive full disclosure. Mobile phone offences are considered 'low priority' cases for the CPS. When a not-guilty plea is entered the CPS are required to send you the evidence against you. This is known as 'initial disclosure'. In nearly all mobile phone cases we challenge, the CPS will fail to provide disclosure in time. The usual excuse is that there's a 'back log' or 'we're still waiting for the police to send it'. Whatever the reason, the evidence should not be admissible if it is not disclosed in time.

Mobile Phone Case Study 

Your defence to driving with a mobile phone

Your defence is likely to take one of two forms:

1. You were not holding / using the phone
2. You were using a hands-free kit
3. The officer is mistaken
4. It was a passenger holding the phone
5. The officer has stopped the wrong vehicle
6. You were holding / using an MP3 player 

If you were not making or receiving a call (but the officer claims that you were) then it is possible to make your defence even stronger. In this situation I would normally request telephone records for the phone that you were not using. These telephone records must come direct from your service provider in order for them to be admissible in evidence (used in court to assist your defence).

One of my aims is to get your case dropped by the CPS even before you have to attend court. One of the easiest ways of doing this is to serve a copy of the records on the CPS. 

Please note that telephone companies can charge up to £150.00 for providing a copy of telephone records to prove anything related to using a mobile phone while driving​. It will also be necessary to obtain an order from the court (known as a witness summons) to force the telephone company to hand over the records. Despite the additional cost, it is obviously an advantage if we can obtain such records as this may result in the CPS dropping the case without it even going to court – and costs can usually be claimed back from Central Funds.

If you were using a Bluetooth headset or hands-free kit to make or receive a call, this is not regarded as using a mobile telephone whilst driving. This is because you were not holding a mobile telephone. We do, of course, need to show evidence of your hands-free kit such as the receipt, instructions, photographs or the kit itself.

M.A.J Law is a team of driving defence solicitors. All our time is spent achieving justice for motorists nationwide!

01514228020

We offer free initial advice on any motoring issue. Even if you don't want to instruct a solicitor, we're happy to speak with you. 

Mobile Phone FAQ's

If you have been charged with using a mobile phone no doubt you have lots of questions. You can call and speak to a solicitor free of charge on 01514228020. 

• Charged with using a mobile phone as a new driver

  If you are convicted of using a phone whilst driving you will receive 6 penalty points on your licence. This means that, as a new driver, your licence will be revoked. You will have to retake your test (theory and practical) before driving again. One option to avoid this is a 'basis of plea' to a lesser offence in order to secure 3 penalty points. We'd be happy to discuss this with you. 

• Can I use my phone as a sat nav whilst driving?

  Yes. It is perfectly legal to use your phone as a sat nav whilst driving. However, you must not touch the phone during this time and it cannot obstruct your viewpoint of the road. If you touch or take hold of the phone you could be committing an offence.  Even tapping the screen to decline a call could put you in trouble.

• Can I use my phone whilst stationary in a car?

  Yes, but only if the vehicle is parked. If you're in stationary traffic, or at a red light, you are still considered 'driving'. It is therefore an offence to use the phone. You might argue, however, that you're parked up (even if there are vehicles around you).

• What fine do I receive for driving with a mobile phone? 

  If you accept a condition offer (fixed penalty notice) the fine is around £200 (it is not 'means tested'). If you challenge the case and are later found guilty the fine is based on your income. It is usually a Band A fine which amount to 25 - 75% of your weekly income. 

• Is it legal to drive with hands free? 

  Yes. You can legally drive using hands free. Some road safety charities are calling for hands-free devices to be outlawed because they can still create distractions. Using the speaker function on your phone is also legal, but only if you are not holding the phone and someone else actives the speaker (and ends the call).

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