Regulation 110 Road Vehicles (Construction & Use) Regulations 1986 and Section 41D Road Traffic Act 1988

A person is not permitted to use a hand held mobile phone while driving and the law has created a specific offence to cover this situation.  However, where it is alleged that use of a mobile phone resulted in a loss of proper control or danger then charges under Careless Driving or Dangerous Driving may be brought with significantly increased penalties that could result in disqualification.  Even the use of hands-free devices can result in prosecution if the use of such a device causes a driver to drive poorly.  Charges can also be brought against an employer if it is established that they are allowing or requiring their employees to answer a phone while driving.  It is also an offence for a supervisor of a learner driver to use a hand held mobile phone while the learner is driving.


  • 6 penalty points and a fine; or
  • A fine and discretionary qualification

What’s Required for a Prosecution

In order to secure a conviction there are three essential elements that must be proved by the prosecution:

  • The mobile phone must be held by the driver in his hand.  A mobile phone is treated as being handheld if it is physically held at any point during its use.  
  • The driver must be using the mobile phone.  Use is defined as “interactive communication” and includes making or receiving a phone call or performing any other communication function such as texting or emailing.  Simply holding a phone does not constitute use.
  • The driver must be driving the vehicle.  Even if a driver is stationary in traffic he is still regarded as driving as he remains in control of the movement and direction of the vehicle. 

A very wide interpretation has been employed by the prosecution and followed by the courts in deciding what amounts to using a mobile phone while driving.  This has resulted in some very dubious convictions.  In almost all cases, the prosecution will rely on the evidence of two police officers.  As it is the driver’s word against theirs these types of cases can be difficult to defend and this is why specialist legal advice is required.

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Defences to the Charge

It is a defence to a charge of using a mobile phone while driving that the call is to an emergency service, as long as the caller is acting in response to a genuine emergency and that it was unsafe or impractical to cease the driving in order to make the call. Most defences, however, are based on a denial that a mobile phone was being used while driving. In support of such a position phone records can be obtained to show that there were no incoming or outgoing calls or texts. Locus inspections and photographs of the vehicle may also cast doubt on what the police say they saw, or what they think they saw, or, indeed what, they could have seen. Robust and forceful cross-examination may reveal inconsistencies and further undermine the prosecution case.

How we can help

If you have been charged with using a mobile phone whilst driving we can help. Our experience and expertise in this area will quickly determine the merits of your case and any other options that might be available to you. As specialist road traffic lawyers we are best placed to provide the right advice, which will ultimately save you time and expense. We can prepare your case, arrange for supporting documentation and make forceful representations at court. We pride ourselves in offering a service that is friendly, honest and reliable. For free advice that is without pressure or obligation simply contact us:

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