“If someone holds their phone and moves it from one place to another but doesn’t use it for its actual purpose – either by typing or talking – that’s not a breach of traffic law,” judge Dietmar Adam said on Wednesday, the Rheinische Post reports.

The 22-year-old defendant's lawyer successfully argued that this is exactly what happened when his client was collared by police.

Far from holding the phone to his ear his client “was scratching himself with it because he had a rash on his face,” the lawyer claimed.

The judge was convinced by the argument because the young man’s face was inflamed by a rash at the time of his court appearance.

“I picked up the phone from the footwell of the car and reflexively scratched my face with it,” the man from Leverkusen said. “The I put it back down on the passenger seat.”

Neither the judge nor the policeman who was called as witness could disprove this version of events.

Andreas Hölzel of the German Automobile Association (ADAC) told The Local that using a mobile phone at the wheel is highly inadvisable.

“Using a phone while driving is rightly viewed as highly dangerous. How much danger it poses can only be estimated. Email, Whatsapp and other [written forms of communication] are a particular distraction,” he said.

He added that the penalty for using a phone at the wheel in Germany has recently been increased and that in the view of the ADAC this was a correct decision.