There are several types of evidence that the police may use to show that you were using a mobile phone or other handheld device while driving. A mobile phone offence can be supported by an officer's observations, photographs, video evidence, witness accounts or, in some cases, evidence relating to the phone itself. This means that you can be charged without the police having stopped you with the phone in your hand.

With that said, if an allegation goes to court, the prosecution must prove beyond a reasonable doubt that you were using such a device illegally while driving. In some cases, the evidence may be insufficient to prove this, in which case you may be in a position to mount a strong defence.

If you have been accused of using a mobile phone while driving, JMW's mobile phone offence solicitors can assess the evidence against you and explain your options. Where a defence exists, we can build a strong basis of evidence to support you. If your best option is to plead guilty, we'll work to present mitigation and limit the sentence you are facing. In this blog post, our experts explain the offence of using a mobile device while driving, the types of evidence used to prosecute mobile phone offences and the legal options you may have to defend your actions.

What does the law say about using a mobile phone while driving?

The law makes it illegal to hold and use a handheld mobile phone or other device while driving. The restriction also applies while sitting in the driver's seat of a car with the engine running, which means that it is in effect when you are stopped at traffic lights or queuing in traffic. The same rules apply to someone supervising a learner driver.

The law defines a handheld device as any device capable of sending or receiving data. Under new laws that came into effect in 2022, the offence covers almost any use where the driver is holding the device, including any offline use, and not only when they are using it for interactive communication.

Using a mobile illegally can therefore include:

• Making or receiving calls
• Texting or sending messages
• Checking notifications
• Taking photos or recording video
• Browsing the internet
• Selecting music
• Using apps
• Checking the time
• Using a mobile phone as a sat nav

A key aspect of the offence is whether the driver was holding the phone, not whether they were using it. If you use a hands-free kit, voice commands or hands-free access built into the vehicle, and do not hold the device while using it, the same restriction does not apply. A phone may also be placed in a suitable cradle or windscreen mount.

However, you must remain in proper control of the vehicle and maintain a full view of the road and traffic ahead. If you are distracted by a mobile device, even if you were not holding it at the time, this may amount to a charge of careless or dangerous driving in the most serious cases.

Can you use a phone hands-free while driving?

Using a mobile phone hands-free is not prohibited in the same way as holding and using one, but using a phone in this way is not always safe or legal and may still be an aggravating factor in an offence. Interacting with a device could affect your ability to maintain proper control, and a driver who does not have proper control or a full view of the road may be charged with dangerous driving, or driving without due care and attention. These offences can apply even when using a built-in sat nav or other device that is not handheld, as the key concern is the driver being distracted by their device.

How do the police prove you were using a mobile phone while driving?

The police can use a combination of different types of evidence to prove that you were using a handheld device while driving, although in some cases, a single piece of evidence will be enough. Because the prosecution must prove beyond a reasonable doubt that you were using the device while driving to secure a conviction, the case will often rely on a combination of witness statements from the police, photographs or video footage and, in some cases, mobile phone data.

The most common types of evidence include:

Direct observation by a police officer

Many mobile phone cases begin with a police officer seeing what they believe to be a driver using a mobile phone. Officers can provide witness statements and give evidence in the Magistrates' Court about where the device was being held, what the driver appeared to be doing with it, and other details.

If a driver admits when they are stopped that they were making calls or texting, this could be recorded by the police and constitute additional evidence alongside the officer's observations. It is important to speak to an experienced motoring offences solicitor at your earliest opportunity if you are stopped and accused of using a mobile phone while driving, as it is important to start building your defence from the outset.

Camera, CCTV and video evidence

Police may rely on forms of video evidence, including CCTV, traffic cameras, police vehicle recordings or footage obtained during an investigation. Some police forces use high-definition camera systems that capture images through a vehicle's windscreen, paired with algorithms that can identify potential mobile phone use. Images identified by the system are reviewed by trained human assessors before a decision is made about enforcement.

The strength of the evidence will depend on matters such as image quality, camera angle and whether the footage clearly identifies the driver holding or using the device.

Evidence from the mobile phone

In some circumstances, police may seek evidence from the mobile phone itself. Phone data shows activity such as calls, messages or the operation of particular applications, and data from around the relevant time could support other evidence.

Evidence that a phone was active at a particular time cannot prove by itself that the driver was holding or operating the phone, because it may have been used through hands-free access or operated by another person in the vehicle. Digital evidence must therefore be considered alongside witness statements or video evidence.

Witness evidence

A passenger, another road user or someone in a nearby vehicle may have seen the driver holding or operating a mobile phone. Their account could provide evidence of the alleged offence or support evidence from other sources.

As with any witness evidence, the court can consider factors such as what the person was able to see, how long they observed the driver and whether their recollection is consistent with other evidence.

When can you legally use a mobile phone in a vehicle?

There are limited circumstances in which using a handheld mobile phone is permitted. If you are safely parked with the engine switched off, you can use a mobile device inside your vehicle. You can also use a handheld device to call 999 in a genuine emergency where it would be unsafe or impractical to stop.

A driver can make a contactless payment using a handheld device where the vehicle is stationary and the payment is for goods or services received at the same time or afterwards. A common example is paying at a drive-through. Remote parking using a phone is another exception.

However, using your phone while you are waiting in traffic or at traffic lights remains an offence.

What happens if you get caught using your phone while driving in the UK?

The standard penalty for using a handheld mobile phone whilst driving is a £200 fixed penalty notice and six penalty points. If the matter goes to court, you could be disqualified from driving and receive a maximum fine of £1,000. The maximum fine is £2,500 for a driver of a bus or lorry.

Accruing six penalty points can have wider consequences if you already have points on your licence. Accumulating 12 or more points within a three-year period can put a driver at risk of disqualification under the totting-up rules.

If you accumulate six or more penalty points within two years of passing your first driving test, your driving licence will be revoked. You would then need to apply for a provisional licence and pass a theory and practical driving test again before obtaining another full licence, which means that the consequences are much more serious for new drivers. A single mobile phone offence can be enough to trigger this process because it comes with six points as standard.

If phone use affects the standard of driving, the police may charge you with a more serious offence such as careless driving or dangerous driving, which come with more serious penalties, including a potential prison sentence in some cases.

Can you challenge a mobile phone offence?

The prosecution has to prove that you committed the offence beyond a reasonable doubt. However, there may be problems with evidence or a new perspective on the situation that could contribute to your defence. Working with an experienced solicitor is the best way to mount a strong defence in these cases and minimise the risk of a conviction.

Depending on the evidence, JMW may be able to challenge whether:

• You were actually holding the device.
• The police correctly identified what you were doing.
• You were the driver at the relevant time.
• The device is legally considered a mobile phone.
• An officer had an unobstructed view.
• A legal exception applied.
• Witness evidence is reliable or consistent.

Many mobile phone cases therefore turn on the precise evidence available, so the appropriate defences differ in each case. The experienced driving offences solicitors at JMW can examine the evidence in your case and advise you of your legal options.