The grey area surrounding using a mobile phone whilst driving – and how it’s about to change


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Drivers using their mobile phones whilst driving are still a relatively common sight on our roads in spite of the fact it was made illegal in 2003.

The offence only attracted a nominal fine until 2006 when it became punishable by way of 3 penalty points. In 2017, the penalty increased to 6 points. 

Due to the recent increase in the penalty to 6 points, many motorists became seriously at risk of losing their licence if convicted – meaning specialist motoring lawyers became increasingly keen to find a way around the legislation. 

The current law was drafted before the introduction of smart phones which resulted in devices being used for pictures, recording video footage, using the internet and satellite navigation.

The offence is currently defined as using a handheld device, in other words one which must be held during the course of an interactive communication, such as phone calls and text messages.  

According to Cheshire based motoring solicitor, Matthew Miller, the question as to what amounts to “using” a mobile phone has been a common debate in Magistrates’ Court throughout England and Wales in recent years. 

“A common scenario was where a driver is using their phone but not for the purposes of an interactive communication,” explains Mr Miller of Kenway Miller Solicitors, Altrincham.

“Courts were being asked to decide whether the offence was committed if the device was not being used to make a call or send a text.

“In such a situation, should the driver be subjected to the dreaded 6 penalty points?”

Mr Miller continued: “In a recent High Court appeal, the answer was decided as a resounding no. It was decided that if a driver is holding the phone he is not technically guilty of the offence unless he is the process of an interactive communication.

“However, if his control over the vehicle is affected by the fact that the phone is in his hand, he may still be liable for failing to have proper control over the vehicle.”

This offence typically carries 3 points upon conviction. However, as Mr Miller explains the law is about to change.

“In its judgement, the High Court stated that it was for parliament to change the existing law to encompass use for any purpose, not just for interactive communications.

“This is exactly what the Government has announced it will do to tighten up the existing law and prevent motorists from avoiding conviction.”


Matthew Miller, of Kenway Miller Solicitors


A recent report by the House of Commons Transport Committee recommended that the Government redefine the offence of driving while using a mobile phone or other device so that it covers all hand-held usage, irrespective of whether this involves sending or receiving data.

The Government has stated that it intends to adopt these recommendations by Spring 2020, meaning that it will soon be an offence to hold the phone for any purpose.

The report also recommended that the Government also consider banning hands free kits but acknowledged the practical difficulties involved.

However, there is no indication at present that the Government will be doing so. Increased penalties have had the effect of changing driver behaviour, according to Mr Miller.

“It’s less common to see drivers with their phones to their ears these days due to the increased use of hands- free kits.

“In an ideal world, we would all have our phones safely stored in the glove compartment whilst driving, but the reality is many people are still using them to check e-mails and to send or receive texts or whatsapp messages.

“Drivers need to be vigilant to ensure they do not fall foul of the law which is about to be tightened up.”

Kenway Miller Solicitors are one of the country’s leading motoring offence specialists and have been practising in Altrincham since 2011.



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