Since 2007 it has been a separate offence to use a mobile ‘phone or similar device while driving. The offence is punishable with 3 penalty points and a fine.
However, if you cause an accident while driving and using a mobile ‘phone, then you could face the more serious allegation of driving without due care and attention, or even dangerous driving. Kill somebody, even a passenger in your vehicle, while driving and using a mobile and you might well be prosecuted for causing death by dangerous driving: maximum sentence 14 years imprisonment.
The offence does not just apply to mobile phones but also to ‘any other interactive communication function’. Thus, if you used, say, your Blackberry to send an email while driving then you will be caught by the legislation. The crucial question for all devices is whether or not it was ‘held at some point during the course of making or receiving’ a call.
Obviously, if you are using a hands-free device while driving then you do not fall foul of the legislation. The important point is whether the device has to be held in order to be used. Please note that you will still be classified as driving, even if you’re stuck in a traffic jam, though if the road is completely gridlocked and your engine is switched off, then you would have an arguable case.
The question of whether or not you were using a mobile ‘phone normally comes down to your word against that of the police. There is rarely independent corroborative evidence of what the officer says, though if you have two officers both saying the same thing, then the situation can be problematic. When, or if summonsed to court, bear in mind that if you say you were not doing what is being alleged, then you should neither accept a Fixed Penalty Notice (FPN) nor plead guilty.