The Road Vehicles (Construction and Use) Regulations 1986 prohibit driving whilst using a hand-held mobile telephone or a hand-held device (other than a two-way radio) which performs an interactive communication function by transmitting and receiving data.
The offence is made out if D is:
(a) driving a motor vehicle on a road; AND
(b) holding the phone in his hand; AND
(c) using it.
There is an exemption which allows the use of a hand-held phone for a genuine emergency call where it would be unsafe for a driver to stop driving to make the call.
Legislation does not require the hand-held phone to be used for an interactive communication function.
The legislation does not set out what is meant by 'using'. However, in a ministerial statement in 2003 the following was said:
'The offence will apply to drivers speaking or listening to a phone call, using a device interactively for accessing any sort of data, which would include the Internet, sending or receiving text messages or other images if it is held in the driver's hand during at least part of the period of its operation. We do not wish to prohibit the carrying of hand-held phones in vehicles or require them to be switched off. A phone may therefore continue to be used to receive data when it is in a vehicle providing the driver is not holding it. Within the context of holding a phone, pushing buttons on a phone while it is in a cradle or if it is being operated via buttons on the steering wheel or handlebars of a motorbike would not, in our view, breach the new regulation.'
The offence can only be committed on a road (rather than 'on a road or other public place') and therefore if you are in a McDonalds car park (or similar) then you would have a defence to using a mobile phone on a road.
The offence is subject to a £200 fixed penalty and 6 penalty points or at court, a fine of up to £1000 and 6 penalty points or discretionary disqualification of any length.