Hands-free is not risk-free and may not always mean offence-free

With the rise of navigation apps such as Google Maps and taxi driver apps like Uber, many people now regularly interact with their phones while driving, for private or commercial journeys.

It is clear in the Highway Code Rule 149 that you must not use a hand-held mobile phone for any purpose when driving, so it is common practice to use a secured mount or cradle to avoid physically holding the device.

But are you allowed – as a matter of law – to touch your phone whilst it is securely mounted?

What is the law?

Regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986 makes it illegal to drive while using a hand-held mobile phone.

It also forbids using any other device that can transmit/receive data, other than a two-way radio.

What does it mean to ‘use’ a ‘hand-held’ mobile phone?

The law states that for this offence: ‘a mobile telephone or other device is to be treated as hand-held if it is, or must be, held at some point while being used.’

‘Using’ is interpreted broadly for these purposes, and encompasses any of the following:

• illuminating the screen
• checking the time
• checking notifications
• unlocking the device
• making, receiving, or rejecting a telephone or internet-based call
• sending, receiving, or uploading oral or written content
• sending, receiving, or uploading a still or moving image
• accessing an application.

Whether a phone is to be treated as ‘hand-held’ is interpreted literally; a device is not “hand-held” if it is secured in a holder, or any equipment that holds or secures it. Therefore, if you use your phone while securely mounted, it is technically legal for the purposes of a mobile phone offence.

Not scot-free

Whether you should in fact use the mobile phone in a cradle is a separate question. Even using one in this way could still amount to an offence. It is important to note that you cannot interact with mounted devices in all and any circumstances ‘scot-free’.

The law clearly states that a person must exercise control of their vehicle at all times.

“No person shall drive or cause or permit any other person to drive, a motor vehicle on a road if he is in such a position that he cannot have proper control of the vehicle or have a full view of the road and traffic ahead”. Regulation 104 in the Road Vehicles (Construction and Use) Regulations 1986.

This means that, despite not falling foul of a mobile phone offence, touching your mounted phone runs the risk of being charged with other offences such as not being in proper control of a vehicle, or it could amount to driving without due care and attention (Road Traffic Act 1988, Section 3) or dangerous driving (Road Traffic Act 1988, Section 2). Where serious injury or death occurs, a driver can be subject to custody and a lengthy driving ban where there has been distraction due to phone use.

You should ask yourself whether use of the device is in fact necessary – it may be being used for route navigation and plays no different role to a built-in satnav. But do you need to make or receive a call that involves any distraction from driving?

If you have to interact with a mounted phone, you should therefore be sure that:

• the device is in a fixed and secure mount or cradle before any journey
• at no point is the device physically held
• you are not distracted by the device and remain in control of the vehicle at all times.

What to do if prosecuted

If you receive a court summons (this may often be a Single Justice Procedure Notice) or a fixed penalty offer (an alternative to prosecution) for a mobile phone or other road traffic offence, Ashtons Legal can provide crucial assistance in:

• reviewing the evidence to determine whether the device was genuinely “hand-held” or properly mounted
• representing you in court to present mitigating circumstances, including submitting any relevant defences or special reasons arguments
• advising on the impact of penalty points/licence endorsements
• representing clients where ‘totting up’ has occurred.

If you need assistance, we encourage you to get in touch and take early legal advice as soon as possible.

Contact our motoring offences solicitors today

If you require legal support with any issues covered in this article, please get in touch with our specialist motoring offences team by using our online enquiry form or by calling 0330 191 4448.