It’s an offence to use a hand-held phone whilst driving a motor vehicle under Section 110 of the Road Vehicles (Construction and Use) Regulations 1986. This offence carries a penalty of 6 points on your licence and can result in a fine of up to £1,000 (or £2,500 if you are driving a bus, coach or heavy goods vehicle).
What are the four elements in law which must be met?
In England and Wales for the offence to be committed the law states there are four elements which must be met:
You were driving – You have to have been driving the vehicle at the time the offence was committed. For example, being stationary at a set of traffic lights where you must be prepared to set off at a moment’s notice would still be classed as driving. However if you were stationary in ‘gridlocked’ traffic for a long period of time, there may be an argument to be had that at the time you were not driving.
On a road – This may include private car parks where the public has access. That said, should you be on private land there may be an argument you were not on a road.
Whilst using – There has been much debate as to what constitutes ‘using’ as there is no statutory definition of this term. However in our experience it is widely accepted as involving some kind of ‘interactive communication’ – e.g dialling a number, composing a message, or the sending/receiving of photos or voice messages would all usually be considered as “using”. However there can be circumstances that are not as ‘clear cut’ as these. For example picking a mobile telephone up and putting it securely on a dashboard or plugging a mobile into a power socket would not appear to be prohibited by legislation. (Although, should the police feel you were not in proper control of your vehicle there is a charge of ‘driving not in proper control of a vehicle’ they have available to them, this however only carries the risk of 3 penalty points, not 6).
A hand-held mobile phone/device – The legislation clearly defines what a hand held mobile phone or device is. It must be a device which is being held at some point during either the making or receiving of a call or message, or the performing of an ‘interactive communication function’. This includes: sending or receiving oral or written messages; sending or receiving facsimile documents, sending or receiving still or moving images; and providing access to the internet. Clearly this encompasses all mobile phones, but please note it does not include MP3 players, dedicated sat-navs or remote controls.
Background on the legislation
The law in relation to this offence was first drafted in the 1980’s (before the more recent advances in technology) and is therefore open to interpretation. However the legislation is worded in this way to be all encompassing in an attempt to be ‘future-proof’ as technology progresses. In our experience, this has meant there has been a lack of consistency throughout the police forces and indeed the Courts in relation to how this area of law is enforced and applied.
Can you write to the Police and/or the CPS on my behalf?
We may be able to assist by writing to the police and/or the Crown Prosecution Service (CPS) who may review their decisions to prosecute in certain situations. If successful, the police or the CPS can withdraw proceedings against a person which will save the time, effort and expense of having to go to Court.
If the case does proceed to Court the prosecution still have to prove beyond reasonable doubt that all four elements of the offence have been proved. This will usually be based on the police officer’s evidence of what he/she has seen at the time of the offence. Officers can often be mistaken as well as being subjected to ‘cross examination’ and questioning in Court to ensure their recollection is accurate. The most damaging witness in Court is often a witness who is genuinely mistaken, as they will believe what they are saying as being fact.
In most circumstances we can provide help and support. Give our experts a call today to discuss your circumstances in full.
The question as to what amounts to using the phone is open to interpretation and would depend entirely on the circumstances. Remember all four elements of the offence must be proven and that includes not just using the mobile phone, but it also must be being held at the time of the offence.
Yes. Hands free kits are not prohibited by legislation and as long as you do not need to interact with the phone they are legal to use. However you can still be prosecuted under Regulation 104 of the Road Vehicles (Construction and Use) Regulations 1986 if the police deem you to not be in proper control of your vehicle due to the use of such a device.
If you accept you were using the phone it is open to you to pay the fine and accept the points (providing that you have less than 6 points on your licence already). If you do have 6 or more points on your licence already the matter will result in court proceedings and if convicted, consideration will be given to a disqualification under totting up of at least 6 months.
This may be a defence under exceptional circumstances, however it must be proved there was a genuine emergency and there was no possible way you could of stopped the vehicle to use the mobile phone.
No, this is not a defence, regardless of how important the call may or may not have been this cannot be used to justify driving whilst using your mobile phone.