With the forthcoming changes to legislation regarding using a mobile phone while driving, a controversial loophole will be closed and the risk of prosecution will increase significantly.

 In 2018, there were 683 casualties on Britain’s roads – including 29 deaths and 118 serious injuries – in crashes where a driver using a mobile was a contributory factor.   Using a mobile device at the wheel is highly likely to reduce a driver’s ability to spot hazards and react in time substantially increasing the risk of the driver crashing.

It’s probably fair to say that most of us assume it is an offence to drive while using a mobile phone and know that it is dangerous to do so.

 But for some reason, huge numbers of us still do it.   

 According to the RAC Motoring Report 2019, nearly 25% of motorists admit to using a mobile device to text or call while driving.  Evidence backed up by the alarming statistic that over 30,000 photos had been posted on Instagram under the hashtag #DrivingSelfie.

Until recently though, the law governing mobile phone use was arguably unfit for purpose, and at the very least difficult to enforce.  Awareness of this situation was raised when Ramsey Barreto successfully appealed against a conviction for filming the scene of a crash with his phone from behind the wheel of a moving vehicle.

Mr Barreto was seen by a police officer holding his phone up to his car window for 10 to 15 seconds as he drove past the scene of a serious accident in August 2017.  Mr Barreto was prosecuted and convicted in the magistrates court for a mobile phone offence. He appealed to the Crown Court who overturned his conviction. The Prosecution appealed to the High Court who upheld his acquittal.

The High Court ruled under Section 41D of the Road Traffic Act 1988, motorists could not be convicted for using mobile phones if they were not using  the device for an interactive communication (i.e. making a telephone call, sending a text, or browsing the internet).

That legislation was drafted in 2003, four years before the release of the first iPhone, and has not been updated since to cover the wide-ranging functionality of the modern smartphone.

Another case referred to in DPP v Barreto, was R v Nader Eldarf (September 2018) where the driver had been changing music tracks on a phone which was held in his hand.  

Was this a mobile phone offence?

The Court again held that it was not as it did not involve any external communication.

Accordingly, using a phone to play pre-stored music is not a mobile phone offence (but could be careless driving of course), but using it to change tracks being streamed ‘live’ on the internet seemingly would be.  This creates a challenging grey area which makes the mobile phone law almost impossible to enforce successfully. 

To address this lack of clarity the law is about to be updated. 


The Department for Transport has announced that it will revise the legislation to be in place by spring 2020.  From then on, any driver caught using a handheld phone behind the wheel can be prosecuted whether they are texting, taking photos, browsing the internet or scrolling through a music playlist.

Ministers will also look at whether devices such as smart watches should also be included in the new rules.

“The difference between interactive communications and standalone functions on our phones is a loophole that has prevented police from prosecuting drivers who continue to use their phones behind the wheel and put themselves and other road users at risk.” said Transport Committee chair Lilian Greenwood MP.

Despite the incredible temptation to grab your phone to quickly read or send a message, change a podcast episode or scroll through a playlist, common sense tells us that no driver should engage in any activity that is a distraction. 

To put this in perspective, if a driver looks at their phone for just 2 seconds when travelling at 30 miles per hour, they will have travelled 30 metres without looking where they are going, drastically increasing the chance of an accident.

Transport minister Grant Shapps said, “This review will look to tighten up the existing law to bring it into the 21st century, preventing reckless driving and reduce accidents on our roads.”

If you are caught using a mobile phone while driving, there is a penalty of six points and a £200 fine.


The safest and most sensible thing to do is turn off your phone while driving.  If you insist on using it for maps or music, you should set it up before you leave and only touch it after pulling over to park.


  • Use a phone if it is fully hands-free.
  • Use your phone as a sat nav – but only hands free.
  • To make 999 or 112 calls on a hand-held device while driving, but only if it’s not otherwise safe to stop.


  • Touch your phone to answer a call.  You can use voice activated functions only.
  • Pick it up and use it to communicate, even momentarily.
  • Touch or use a phone while stopped in traffic or at traffic lights

In simple terms, when the new legislation comes into force, you will not be able to touch your phone at all while driving for any reason other than to call the emergency services.  If you are caught doing so, you’ll face a £200 fine and six penalty points.


Motoring Offence Solicitors offer the very best privately funded legal representation to clients accused of mobile phone driving offences in Manchester and across the UK.  Call our team today on 0161 832 3852 or complete the enquiry form on the right-hand side of this page.