How is this offence committed?

If a driver uses a mobile phone, technically an ‘interactive communication device’, in a way that is prohibited whilst driving in a public place and handles the phone at the same time, the offence is committed.  The offence is aimed at motorists who handle an ‘interactive communication device’, such as a smartphone, which enables the sending or receiving of data (commonly such as the sending or receiving of text messages or pictures or the making or receiving of phone calls).  If it is touched whilst the phone is being used for such a purpose then the offence is made out.  

When is the offence NOT committed?

If the interactive functionality of the device is not being used at all but the device is being used, for example, to take pictures or film or some other use, which does not involve the sending or receipt of data, the High Court has now confirmed that the offence is not committed.  However, the court also stated that there are circumstances in which it has yet to be decided if an offence is committed or not.  

Grey Area

There is a grey area of activity where the court said that there may be an arguable case that the offence has been committed such as when a driver drafts a text message in preparation for sending it or such as looking at messages which had been downloaded previously.  Be warned, however, that the court emphasised that handling a phone for any purpose at all whilst driving could amount to other offences such as careless or dangerous driving!

Penalties

This offence is dealt with by way of the endorsement of 6 penalty points (or a disqualification) plus a fine.  If a fixed penalty is accepted then it is dealt with by way of endorsement with 6 points and a £200 fine.

If the endorsement of penalty points means that you will have a total of 12 or more current points on your Driving Licence this means that you can expect to be disqualified for at least 6 months (unless you can establish that you would suffer from ‘exceptional hardship’ – see the page on ‘penalty points disqualifications’ for more information on this.)  

Defences

As well as the defence mentioned above, for example, if the phone is being used to take pictures or some other non-interactive function, there are also cases in which the officer has mistaken the identity of the user of the phone such as when a passenger not the driver was using a phone and when the driver was holding a speaker or other object to his ear not a phone.  I have successfully represented motorists in such situations. If you would like help to prepare and present your case or if you are unsure whether or not you have a defence then do not hesitate to get in touch.