Either you or your solicitor(s) are full of sh*t - either what they told you was, or your version is.
One solicitor told me to accept the PCN & fine and then contest not guilty if it goes to court as mitigating circumstances are poor.I therefore did pay up but this will be rejected by the DVLA I'm sure- will they write back to me or will it just go to court?
The fixed penalty is not a fine, but arguably that is just semantics. The rest is utter twaddle. There is no PCN - presumably you have received a COFP, as you claim to have already paid it. As has been explained, you will be able to plead not guilty as the condition of the COFP is not met, and the penalty will be refunded and court proceedings will be issued by way of Single Justice Procedure Notice. The concept of pleading not guilty as mitigation is beyond absurd, but not so far soi as to make out a defence of insanity. The DVLA have about as much to do with this as accuracy has to your version of events.
The notification to go to court will be after the Single Justice has dealt with your plea.
Pragmatically, if the police/prosecution will drop the mobile phone charge for a 3 point charge, that has a lot going for it as you would avoid a totting up ban.
However, if they won't play ball, you are left with the choice of :
- pleading guilty and getting 6 points and a 6 month totting ban (unless you have a successful exceptional hardship argument), but saving 1/3 on the fine (and therefore also on the 40% surcharge on the fine) and facing prosecution costs of ~£90 rather than ~£620 if you lose a contested trial, or
- pleading not guilty and attempting to defend the charge. There are essentially 4 elements to the offence - using (which does not have to be interactive communication), holding (or necessarily having held whilst driving and using), driving (whilst holding and using) and a device capable of interactive communication.
Were you (the vehicle) moving while using the phone? Personally, I do not consider that using a phone whilst stationary in queuing traffic constitutes driving for the purposes of the mobile phone legislation. Others may disagree.
What were you using the phone for? Ironically, if it was for interactive communication purposes, it could engage Article 10 ECHR - which would require any interference with the right to express and receive ideas and information without interference by public authority, unless such interference is provided for by law and necessary to protect other people's rights (in this case their safety). If the vehicle was stationary throughout, then I would argue that it would be difficult to argue that it was necessary to prohibit such actions to protect others from being hit by a stationary vehicle. Again others may disagree. If the vehicle was moving slowly then that would be an even harder sell.
Did you hold the phone at any point whilst also using it and driving? And perhaps more importantly, if you put the prosecution to proof, could they prove that you did? I note that you have told us that it was never hand held - but I call bullsh*t on that, unless it was permanently attached to your trousers when you bought it.
