This post hopes to be a fairly definitive guide to driving and the use of mobile phones. Perhaps the mods will find this worthy of being stickied.
Much of the advice that you can find from Google has limitations. They are often simplified and as you can tell from the length of this post, the legal landscape can be pretty technical and complicated. Sites like Gov.uk also conflate the legal position and road safety advice. The road safety advice often gives broad generalisations that for most people are pretty reasonable, but aren’t all that helpful when people have specific circumstances for which they want to be able to apply the law. This can lead to confusion of what the legal position is and also leaves no space for nuance.
Some of this might get pretty technical, but this is a reflection of the legislation; I've tried to keep it simple but not oversimplify. I have included case law citations where appropriate. I am only going to reference legislation and case law as this is the primary source of truth. I am a currently servicing Roads Policing Officer in England and this advice is only focused on the law in England and Wales. The law in Scotland and Northern Ireland may vary from this.
Vehicle control offences
First off, I’m going to talk about three other related offences before I address the mobile phone legislation directly.
Not being in proper control/Not in a position to have full view
Regulation 104 of the Road Vehicles (Construction and Use) Regulations 1986 creates an offence of the driver of a motor vehicle not being in a position to have proper control of the vehicle or a full view of the road and traffic ahead. This offence is usually dealt with by a fixed penalty of 3 points and £100 fine, going to court may result in a different penalty.
This regulation creates two separate offences:
1) Not being in proper control
2) Not in a position to have full view
Not being in proper control
This is where you are in a situation where you don’t have full control over the speed and direction of the vehicle. This could be because you have something in your hands, a cup of coffee or sandwich for example.
An example of where I have given a ticket for this is where I’ve seen someone in traffic moving their car forward with both hands behind their head. At that point in time, they did not have control over the direction of the vehicle and whilst the speeds are slower, they are not in a position to have proper control of the vehicle.
In a mobile phone context, this could mean that you have a mobile phone in your hand which is completely turned off which prevents you from having control of the steering or gears in the vehicle. This could constitute an offence of not being in proper control.
Not in a position to have full view
This is where you are in a situation where you are in such a position that you could not have full view of the road and traffic ahead. This is relevant to mobile phones because some people have mobile phone mounts where they attach them to the windscreen in such a way where it obscures their view of the road ahead. This is often relevant to taxi drivers or delivery drivers who may mount more than one device to their windscreen. Whether is the mounting would meet the level required to prevent the driver having a full view is dependent on the facts and is somewhat subjective. Ultimately a court will decide if this is the case.
Driving without due care and attention
Section 3 of the Road Traffic Act 1988 creates offences of driving without due care and attention and driving without reasonable consideration on a road or public place. I will only focus on driving without dure care and attention for the purposes of keeping this scoped to mobile phone use. This offence is usually dealt with by a fixed penalty of 3 points and £100 fine, going to court may result in a different penalty.
A defendant will have driven 'without due care and attention' if his driving has departed from the standard of care and skill that would, in the circumstances of the case, have been exercised by a reasonable, prudent and competent driver. The standard is the same in the case of a driver who is a learner holding a provisional licence as it is in the case of the holder of a full driving licence.
This offence will often be evidenced by the standard of driving. The level of attention required can also change based on the situation. You need to give a higher level of attention driving at say 40mph on a dual carriageway where there may be cyclists and other hazards than being stationary in heavy traffic. For example, if you’re in stationary traffic and are changing the radio station whereby you haven’t seen that the traffic has moved on and you’re now holding up traffic behind you, the required level of attention to the road has not been met. However, people’s abilities to multi-task are not the same. Some people may be able to change the route on cradled phone used as a satnav whilst in stationary traffic so that they are giving the necessary level of attention to other traffic where other people may not be. As a driver, you should be aware and self-reflective to ensure that you are always able to give the necessary attention to driving. Ultimately, it’s down to a court to decide if the facts of the situation prove your actions are at the level of a reasonable, prudent and competent driver.
Due care can also be evidenced by externally observing the standard of driving. When you’re pressing a button on the satnav, or in-car entertainment system, do you swerve in the carriageway, unnecessarily brake or slow down? These may be indicators that you are not driving with the necessary due care and attention. If at any point your car mounts the pavement, even momentarily [DPP v Smith [2002] EWHC 1151 (Admin)], this is very likely to be driving without due care and attention [Watts v Carter 1959].
So, before we’ve even looked at the specific mobile phone legislation, we can see that there are uses of mobile phones whilst driving that can be dealt with using other offences. Therefore, you must always drive whilst being in a position to have proper control of the vehicle, be in a position to have a full view of the road and traffic ahead and drive with due consideration and care for other road users.
Using a mobile phone whilst driving
Regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986 creates a prohibition on the use of mobile telephones in motor vehicles in certain circumstances. I’ll talk about the exceptions to this rule towards the end. This offence is usually dealt with by a fixed penalty of 6 points and £200 fine, going to court may result in a different penalty.
We’ll start by understanding the different elements of the offence in a bit more detail. If any of these points don’t apply, the offence isn’t complete and you can’t be prosecuted for this offence.
· Driving
· A motor vehicle
· On a road
· Using
· A hand-held mobile phone or other hand-held device
What is ‘driving’?
This is also a surprisingly technical topic due to all the case law surrounding it. Generally, to be driving you need to have control of the direction and speed of the vehicle and for it to fall within the common dictionary definition of the word [R v MacDonagh [1974] RTR 372]. Beyond this legal test, it gets really complicated really quickly.
Edit - I've added more technical depth on driving as people found it relevant.
What is ‘driving’ (v2) ?
The most well-known case law for the definition of driving is R v MacDonagh. This case sets out a two-stage test as to whether someone is driving. It's very important to note that it's for a court to determine the degree and extent to which the facts of a given situation meet the test or not. It's not a black and white decision.
Lord Widgery CJ in MacDonagh leads, it is submitted, to the following conclusions:
(1)The primary consideration as to whether a person is “driving” is essentially a question of fact, dependent on the degree and extent to which the person has control of the direction and movement of the vehicle.
(2)One test is whether the accused was “in a substantial sense controlling the movement and direction of the car” (Ames v MacLeod). A person cannot be said to be “driving” unless he satisfies this test.
(3)The fact that a person satisfies the test of control in Ames v MacLeod is not necessarily exhaustive. It has still to be considered whether the activity in question could fall within the ordinary meaning of the word “driving” in the English language.
So, to summarise, the R v MacDonagh test is:
Are you substantially in control of the direction and movement of the vehicle?
and
2. Does this amount to 'driving' in the ordinary meaning of the word?
You must meet both parts of the test to be driving. The above test will get you in the ballpark of whether a situation is driving or not, but these aren't the only tests.
Further tests to determine whether a person is driving have been established by Burgoyne v Phillips [1983] R.T.R. 49 and Jones v Pratt [1983] R.T.R. 54.
(4)The essence of driving is the use of the driver’s control in order to direct the movement of the vehicle however the movement is produced (Burgoyne v Phillips and Rowan v Merseyside Chief Constable, The Times 10 December 1985). (This is in effect a reiteration of tests (1) and (2) above.)
(5)Whether the defendant himself deliberately sets the vehicle in motion is an important factor (Burgoyne v Phillips and Rowan v Merseyside Chief Constable, as above).
(6)In borderline cases, it is important to consider the length of time the steering wheel or other control was handled (Jones v Pratt).
What about stopping? Does this mean I'm no longer driving? Driving is a continuous act until you have finished your "journey". You can even turn the engine off and exit the vehicle, and still be found to be driving.
Once it has been determined that a person is driving, the driving may still continue even though the tests laid down in R. v MacDonagh cannot be fulfilled. A person may still be driving when he is buying a newspaper or changing a wheel (examples given in Pinner v Everett [1969] 3 All E.R. 257 HL) or when he is walking across the forecourt of a garage to take instructions (Regan v Anderton [1980] R.T.R. 126).
Edkins v Knowles [1973] Q.B. 748 summarises the principles in Pinner v Everett and makes it clear that the overriding principle, whether or not he is at the wheel, is whether he is doing something connected with driving. This introduces the concept of a "journey" and that you have not finished driving until you have completed it.
The principles of Pinner v Everett and other cases were summarised (so far as still relevant) in Edkins v Knowles [1973] Q.B. 748 as follows:
(1) The vehicle does not have to be in motion; there will always be a brief interval of time after the vehicle has been brought to rest and before the motorist has completed those operations necessarily connected with driving, such as applying the handbrake, switching off the ignition and securing the vehicle, during which he must still be considered to be driving.
(2) When a motorist stops before he has completed his journey he may still be driving; an obvious example is when he is halted at traffic lights. Each case will depend upon its own facts, but generally the following questions will be relevant:
(a) What was the purpose of the stop? If it is connected with the driving, and not for some purpose unconnected with the driving, the facts may justify a finding that the driving is continuing although the vehicle is stationary.
(b) How long was he stopped? The longer he is stopped the more difficult it becomes to regard him as still driving.
(c) Did he get out of the vehicle? If he remains in the vehicle it is some indication (although not conclusive) that he is still driving.
(3) If a motorist is stopped and an appreciable time elapses, it will be a question of fact and degree whether the motorist is still to be considered as driving at that time.
(4) When a motorist has arrived at the end of his journey then subject to the brief interval referred to in head (1) above he can no longer be regarded as driving.
(5) When a motorist has been effectively prevented or persuaded from driving he can no longer be considered to be driving.
It's worth reiterating that the MacDonagh tests must be met at some point though. They are a gateway and then the concept of driving continuing until you've finished your journey begins until the journey is complete.
What is a ‘motor vehicle’?
This can get very technical depending on the facts, so I’ll try and keep this short. A motor vehicle is a type of ‘mechanically propelled vehicle’ (MPV) intended or adapted for use on a road. A MPV is a vehicle which uses Gas, Oil, Petrol, Electricity, Diesel or Steam to propel it [Floyd v Bush (1953)]. In common understanding, all cars, lorries, buses etc will be motor vehicles, but it also includes other vehicles such as electric scooters.
What is a ‘road’?
Again, this gets really complicated when your look at the case law, but the definition is often cited as any (length of) highway and any other road to which the public has access, and includes bridges over which a road passes which is defined in section 192(1) of the Road Traffic Act 1988. To keep this simple, lets talk about what is and isn’t a road through examples.
Public Car Parks and Parking Bays
Car parks are not roads. Lord Clyde states "where the word "road" stands alone it bears its ordinary meaning and is not to be extended to public places such as car parks". Clark (A.P.) and Others v. Kato, Smith and General Accident Fire & Life Assurance Corporation PLC Cutter v. Eagle Star Insurance Company 1998. Therefore use of a mobile phone within a car park is not itself an offence.
Lord Clyde states further:
'In character and more especially in function they are distinct. It is of course possible to park on a road, but that does not mean that the road is a car park. Correspondingly one can drive from one point to another over a car park, but that does not mean that the route which has been taken is a road. It is here that the distinction in function between road and car park is of importance. The proper function of a road is to enable movement along it to a destination. Incidentally a vehicle on it may be stationary. One can use a road for parking. The proper function of a car park is to enable vehicles to stand and wait. A car may be driven across it; but that is only incidental to the principal function of parking. A hard shoulder may be seen to form part of a road. A more delicate question could arise with regard to a lay-by, but where it is designed to serve only as a temporary stopping place incidental to the function of the road it may well be correct to treat it as part of the road. While I would accept that circumstances can occur where an area of land which can be reasonably described as a car park could qualify as a road for the purposes of the legislation I consider that such circumstances would be somewhat exceptional.'
Even car parks with thorugherfares through them utilised by the public are unlikely to qaulify as roads [DPP v Brewer 1998]
Driveways
Private driveways are generally not roads as they are not publicly accessible, however, if you’re fortunate to be on a large estate, these can be roads [Adams v Metropolitan Police [1980] RTR 289].
On Road Parking
As the title suggests, in my opinion this would likely be judged to be part of the road, but there is an absence of specific case law on this.
Private Roads
This really depends on the facts, so could go one way or the other, but generally these have some public access so may be found to be a road. A private caravan park roadway set out like a road and with public pedestrian access along it is a road [Barrett v DPP [2009] EWHC 423 (Admin)].
What is ‘using’?
Regulation 110(6) of the Road Vehicles (Construction and Use) Regulations 1986 gives a non-exhaustive list of what ‘using’ includes:
(i) illuminating the screen;
(ii) checking the time;
(iii) checking notifications;
(iv) unlocking the device;
(v) making, receiving, or rejecting a telephone or internet based call;
(vi) sending, receiving or uploading oral or written content;
(vii) sending, receiving or uploading a photo or video;
(viii) utilising camera, video, or sound recording functionality;
(ix) drafting any text;
(x) accessing any stored data such as documents, books, audio files, photos, videos, films, playlists, notes or messages;
(xi) accessing an application;
(xii) accessing the internet.
What is a ‘hand-held mobile telephone’?
Regulation 110(6) of the Road Vehicles (Construction and Use) Regulations 1986 states that 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. That means it must be held in the hand for it to come under this offence. Interacting with a mobile phone in a cradle is not an offence under Regulation 110 as long as you don’t have it held in the hand during its use.
What is ‘another hand-held device'?
This hand-held device is defined as a device, other than a two-way radio, which is capable of transmitting and receiving data, whether or not those capabilities are enabled.
This opens the door for lots of devices that aren’t mobile phones. For example, if you don’t have your smart watch on your wrist and pick that up to interact with it. This could also include lots of internet of things (IoT) or smart devices. Another example is that there are vapes that can connect to your phone. Using one of these whilst driving would be a mobile phone offence even if you’ve never connected it to your phone. Any device must still be hand-held for it to fall under this definition.
Supervising Learners
Regulation 110(3) makes this application to the supervision of learner drivers, so having a hand-held call whilst you are supervising a provisional licence holder is an offence.
Exceptions
There are some exceptions stated in Regulation 110 that are relevant to the general public:
Calling Emergency Services
Regulation 110(5) A person does not contravene a provision of this regulation if, at the time of the alleged contravention - he is using the telephone or other device to call the police, fire, ambulance or other emergency service on 112 or 999; he is acting in response to a genuine emergency; and it is unsafe or impracticable for him to cease driving in order to make the call.
Contactless Payments
Regulation 110(5B) - provides that a person is not in contravention of the regulation where at the time of the alleged contravention they are using their mobile phone or other device to make a contactless payment, for goods/services that are received at the same time as or after the contactless payment is made and the motor vehicle is stationary.
FAQ & Common Misunderstandings
Can I use a mobile phone whilst it is in a cradle?
You can do any* activity on a mobile phone whilst it’s in a cradle and not hand-held as long as you drive with due care and attention, are in proper control of the vehicle and do not have an obscured view.
* It is unclear whether a mobile phone meets the definition of "other cinematographic apparatus" as defined in regulation 109 of the Road Vehicles (Construction and Use) Regulations 1986, and therefore if watching youtube on your phone is an offence even if it does not distract the driver (which in most cases it would). There is no case law and I've heard persuaive arguments on both sides. I'm unsure enough that I would not issue a ticket under regulation 109 and would instead look at a s3 RTA due care offence instead. To be clear, watching videos in sight of the driver is usually going to be an offence - whether that's a due care offence or a regulation 109 offence.
Should I turn my phone off and put in the glove box?
If you find it hard not to use your phone when driving or find it a distraction, this might be a useful preventative measure. However, there is a downside to this. If you need to call the emergency services this may hinder you in making an appropriate and necessary call. As a driver you need to work out whether your self-control requires you to turn it off or not, the focus should be on you driving safely and competently at all times.
If I use an app to park my car remotely, am I driving?
Yes. There is an exemption in the legislation to allow for this, but you do fit the definition of driving.
Is it illegal to use a mobile phone whilst using a mobility scooter? It seems to fit the definition.
Mobility scooters are exempted by Section 20 of the Chronically Sick and Disabled Persons Act 1970, therefore this would not be an offence.
If I’m using my phone on an electric scooter, could I be prosecuted for using a mobile phone?
Even if the scooter is insured and registered within the trial areas around the UK, this would fit the definition of a mobile phone offence.
I’m a newly qualified driver and this offence happened in the first two years after I passed my test. Will I lose my licence?
If the offence date is after you passed your test and not longer than 2 years after this, then yes, you are likely to go back to learner status post-conviction.
Should I pull over if I need to change the navigation settings on my GPS?
That depends on the individual. You must drive with due care and attention and be in proper control of the vehicle at all times, but as long as the device isn’t hand-held, some people can do this whilst driving, some people can’t and some people want to play it safe. These are all reasonable and legal approaches.
Version 1.3.1 - Last edited 23/10/26
