Mobile Phone

The main law governing mobile phone use while driving in Scotland is Regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986, as amended by the Road Traffic Act 1988 and further clarified by the Mobile Phone Offences (Penalty) (Amendment) Regulations 2017. This law prohibits using a hand-held mobile phone or similar device while driving.

In Scotland, the law applies equally whether you are driving a car, a motorcycle, or any other vehicle on the road. It also applies if you’re supervising a learner driver.

The legislation specifically defines “using” a mobile phone as:

• Making or receiving calls
• Sending or receiving texts, emails, or other messages
• Taking photos or videos
• Accessing apps, browsing the web, or using social media
• Using the device as a GPS (unless hands-free and properly mounted)

The bottom line is this – If you are seen by the police holding a phone, even if it is not being used, while the engine is on (whether moving or stationary, including at traffic lights or in a traffic jam) you are likely to be charged.   

Penalties for Using a Mobile Phone While Driving

The penalties for using a hand-held mobile phone while driving in Scotland are severe, reflecting the dangers of distracted driving:

• Fixed Penalty Notice: £200 fine and 6 penalty points on your licence.
• Disqualification: If you have passed your driving test within the last two years, accumulating 6 points will lead to an automatic disqualification, requiring you to retake both the theory and practical driving tests.
• Court Prosecution: If the case goes to court, the maximum penalty is a fine of up to £1,000 (or £2,500 if driving a bus or goods vehicle), along with the possibility of being disqualified from driving.
• Dangerous Driving: In cases where mobile phone use results in dangerous driving, the penalties can escalate to unlimited fines, up to 14 years in prison, and mandatory disqualification.

Additionally, insurance premiums may increase significantly if you’re caught and penalised under this law.

What Amounts to Using a Mobile Phone While Driving?

To clarify what is considered “using” a mobile phone while driving, here are examples of both lawful and unlawful actions:

Unlawful Actions:

1. Holding the phone to check notifications, texts, or make/receive a call.
2. Texting or emailing, regardless of whether the vehicle is stationary at traffic lights.
3. Using social media apps such as Facebook, Twitter, or WhatsApp while driving.
4. Taking photos or videos with the phone.
5. Setting or adjusting GPS on a hand-held device while driving (even if you’re just inputting an address).

What’s Required for a Prosecution

In order to secure a conviction there are three essential elements that must be proved by the prosecution:

• A mobile phone is treated as being handheld if it is physically held or touched at any point during its use.
• The driver must be using the mobile phone.  Simply holding a phone does not constitute use.  However, it may be very difficult to prove that a mobile phone was held, but not used in any way.
• The driver must be driving the vehicle.  Even if a driver is stationary in traffic he is still regarded as driving as he remains in control of the movement and direction of the vehicle.

A very wide interpretation has been employed by the prosecution and followed by the courts in deciding what amounts to using a mobile phone while driving.  This has resulted in some very dubious convictions.  In almost all cases, the prosecution will rely on the evidence of two police officers.  As it is the driver’s word against theirs these types of cases can be difficult to defend and this is why specialist legal advice is required.

Lawful Actions (Hands-Free Use):

1. Using a hands-free system (e.g., Bluetooth) to make or receive calls without physically touching the phone, as long as the phone is securely mounted.
2. Voice-activated commands for navigation or calls, provided no physical interaction with the device occurs.
3. Music apps can be operated through integrated controls, provided no hand-held use of the phone occurs.

It is important to note that hands-free use is allowed, but you can still be prosecuted for dangerous driving if you are distracted, regardless of whether the phone is hand-held or hands-free.

The Law on Touching a Phone in a Cradle

The law prohibits “using” a hand-held mobile phone while driving, but the definition of “using” can extend beyond simply holding the phone in your hand. If you touch a phone to interact with it, even when it’s in a cradle or mount, you may still be considered “using” it.

Examples include:

• Typing in a destination on a GPS app while the phone is in a holder.
• Scrolling through music or contacts while driving.
• Answering a call by physically tapping the phone screen, even though it’s in a mounted holder.

Even if the phone is mounted and not in your hand, physical interaction with the device while driving can still be considered distracting, and therefore, could lead to a prosecution for not being in proper control of the vehicle. This falls under general offenses such as careless driving or dangerous driving if it affects your concentration or ability to drive safely.

Hands-Free Use

You are allowed to use hands-free devices if:

• You don’t need to touch the phone itself.
• The phone is secured in a proper holder, and you can operate it using controls in your car (e.g., voice commands or steering wheel controls).

Risks of Touching the Phone

While the phone being in a cradle technically makes it “hands-free,” touching the phone for any purpose while driving can still distract you. If the police observe you engaging with the phone in a way that takes your attention away from the road, they could charge you with an offense, even if the phone remains in its holder.

Defences to Using a Mobile Phone While Driving

There are limited defences available to a driver charged with this offence. The law is designed to be strict, but there are a few scenarios where a driver might have a defence:

1. Emergency Calls:
   • If the driver is making a genuine emergency call to 999 or 112 when it was impractical or unsafe to stop, this may provide a legal defence. However, this must be a true emergency where stopping the vehicle would delay help.
2. Not Using the Phone:
   • If the phone was not being used and was merely in the driver’s hand (e.g., being moved or picked up), a defence might argue that this does not meet the definition of “using” the phone, though this is often difficult to argue successfully.
3. Device Not Hand-Held:
   • If the phone was being used hands-free (e.g., through a built-in car system or secure holder) and there was no physical contact with the device, the driver may have a defence. However, even in hands-free cases, the police could charge you with careless or dangerous driving if you are not in proper control of your vehicle.
4. Technical Issues with the Phone:
   • If the driver can prove that there was an issue with the phone (e.g., it was malfunctioning or used inadvertently), this could provide a defence, but such arguments are rarely accepted unless clearly proven.
5. Police Procedure Error:
   • Sometimes a defense can be mounted based on procedural errors by the police during the stop or issuance of the fixed penalty notice, such as failure to properly caution the driver or incorrect reporting.

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