Does holding a mobile phone when driving constitute using it?

In the case of R (on the application of Olins) v Lavender Hill Magistrates Court, the High Court gave useful guidance as to the criminal law regarding use of a mobile phone under s.41D Road Traffic Act 1988. The claimant sought judicial review of his conviction in the Magistrates Court.

 Facts of the offence

The claimant was driving whilst making a call to his father via the car’s Bluetooth system, with his phone sitting on the front passenger seat. When he was forced to brake suddenly, the claimant instinctively grabbed his phone to stop it falling into the footwell. The claimant agreed these facts and on that basis the justices convicted him.

What constitutes an interactive communication

The magistrates relied on a previous High Court decision in R v Bent where a defendant was convicted of using a mobile phone whilst changing a song to play via the car’s Bluetooth device. The important issue being that using a mobile phone to perform an ‘interactive communication’ was sufficient. The need for the prosecution to prove such a communication as an essential element of the offence was removed in 2022 to widen the scope of activities that would be caught regarding using a phone. This change in law was to cure an earlier court acquittal which held that using a phone to film an accident while driving did not constitute an interactive communication function.

In Bent it was held that the use of Bluetooth technology involved communication with another device and the Bluetooth connection was not incidental to use. The 2022 change in the law expanded the indicative list of activities which constitute ‘using’ to include illuminating the screen, unlocking the device, checking notifications, utilising the camera etc. Crucially the list was not exhaustive and there may be other functions not on the list that fall within the definition of using.

Mr Olins argued that when using his phone there needed to be a logical and common-sense interpretation of when and how he was using his mobile phone and the Bluetooth function to make a call. The reason that he held the phone was to prevent it slipping to the floor, not to make the call.

The High Court rejected the claimant’s application for the case to be stated on appeal but allowed his application regarding the Magistrates’ failure to include special circumstances when considering the sentence to be imposed. It was held that the regulations imposed a single unitary question - whether the claimant was using a mobile phone to make a call while holding the device in his hand. The interpretation of the CPS was preferred, namely that if the phone was held at some point this was sufficient, and this must have occurred with Olins. If the regulations were to be interpreted otherwise there would be a need to consider all manner of factual determinations in each case as to what the phone was being used for and the purpose of use for which it was being held.

Practice points

• The 2002 amendment to the regulations sought to prohibit the use of a mobile phone whilst driving, except for limited circumstances regarding parking/toll payments by phone and use of a phone in a hands-free cradle. The judgment in Olins provides clarity that any use which includes holding the device whilst driving is an offence under s.41D RTA 1988 regardless of the purpose for which it is being used. Put simply, if the phone is being held at the same time it is being used the test is satisfied. The reason for holding the device may present the opportunity to argue mitigation for a special reason but will not provide a defence.
• Consideration of use of a mobile phone whilst driving is an important issue regarding findings of negligence in civil proceedings.
• In more serious cases the police will routinely seize and interrogate mobile phone data to consider the question of use. This may identify whether there has been a telephone call, text message or even use of social media at the likely time of collision but may not pick up on uses such as accessing music. The question of whether a driver has caused or contributed to a collision because of use or distraction by a mobile phone may be understood not only by data from the device but other evidence such as passenger evidence, eyewitness accounts and even CCTV footage.
• With advancing technology and increasing availability of accident footage, parties to litigation should rigorously examine whether the use of a mobile phone or other distraction has contributed to bad driving.