NIP after 16 Days - Pleading Not Guilty - Update

[TPAC]

Zeeky said:

TPAC said:

Zeeky said:

TPAC said:

Zeeky said:

What is the significance to you of para 2 only referring to rec and reg del when specifically deeming them to be served regardless of whether or not they have been received?

Why was First Class Post left out of this stipulation?

If the rest of the legislation can be construed so as to deny the accused a defence of non-receipt what is the purpose of para 2?

The purpose is to disallow any attempt by the Defendant to escape service by omitting to accept the recorded delivery/registered letter.

That may be the purpose of the part of the para "notwithstanding that the notice was returned as undelivered"

What do you make of

"or was for any other reason not received by him"

This goes much further than dealing with the accused refusing to accept it and precludes a defence of non-receipt under any circumstances (such as the Royal Mail losing it).

(3) The requirement of subsection (1) above shall in every case be deemed to have been complied with unless and until the contrary is proved

However non-receipt is clearly not a defence in the case of rec and reg del as per para 2.

How does para 3 answer the point that "or was for any other reason not received by him" only applies to the above methods of service and not to First Class Post?

Are you saying para 3 gives the defendant a right to 'prove to the contrary' in the case of none receipt of a rec or reg del NIP?

Please read the whole section. In plain English, it says that proper service has been made if the notice has been given to the Defendant, dropped off by hand at the correct address, sent by first class post. Or even by recorded delivery or registered post. And as long as the notice has been served in any of these ways, it is down to the Defendant to prove otherwise.

(2) A notice shall be deemed for the purposes of subsection(1)(c) above to have been served on a person if it was sent by registered post or recorded delivery service addressed to him at his last known address, notwithstanding that the notice was returned as undelivered or was for any other reason not received by him.

(3) The requirement of subsection(1) above shall in every case be deemed to have been complied with unless and until the contrary is proved.

(4) Schedule 1 to this Act shows the offences to which this section applies.


Requirement of warning etc: supplementary.

2. —(1) The requirement of section 1(1) of this Act does not apply in relation to an offence if, at the time of the offence or immediately after it, an accident occurs owing to the presence on a road of the vehicle in respect of which the offence was committed.

(2) The requirement of section 1(1) of this Act does not apply in relation to an offence in respect of which—
(a) a fixed penalty notice(within the meaning of Part III of this Act) has been given or fixed under any provision of that Part, or
(b) a notice has been given under section 54(4) of this Act.


(3) Failure to comply with the requirement of section 1(1) of this Act is not a bar to the conviction of the accused in a case where the court is satisfied—
(a) that neither the name and address of the accused nor the name and address of the registered keeper, if any, could with reasonable diligence have been ascertained in time for a summons or, as the case may be, a complaint to be served or for a notice to be served or sent in compliance with the requirement, or
(b) that the accused by his own conduct contributed to the failure.

[vonhosen]

Zeeky said:

vonhosen said:

Zeeky said:

TPAC said:

Zeeky said:

What is the significance to you of para 2 only referring to rec and reg del when specifically deeming them to be served regardless of whether or not they have been received?

Why was First Class Post left out of this stipulation?

If the rest of the legislation can be construed so as to deny the accused a defence of non-receipt what is the purpose of para 2?

The purpose is to disallow any attempt by the Defendant to escape service by omitting to accept the recorded delivery/registered letter.

That may be the purpose of the part of the para "notwithstanding that the notice was returned as undelivered"

What do you make of

"or was for any other reason not received by him"?

This goes much further than dealing with the accused refusing to accept it and precludes a defence of non-receipt under any circumstances (such as the Royal Mail losing it).

That would be signed for by another who he alleged didn't pass it on.

Rec and reg del is sent to an address not to a person. What would be the difference between someone signing for it and not passing it on and someone picking up the ordinary post from the hall floor and not passing it on?

Service is defined in terms of arriving at the address, not arriving in the hands of the accused.

A defendant saying someone else at his address signed for it but he didn't get it would be in the same situation as a defendant not receiving first class post because someone else picked it up.

It follows then that part of the para "or was for any other reason not received by him" applies equally to rec and reg del and First Class Post.

Service is not defined within the legislation in terms of arriving at the address, it is defined as posted to arrive within the ordinary course of the post within 14 days.

[vonhosen]

Zeeky said:

peterguk V6 KWK said:

vonhosen said:

It is 'service' (sent to arrive in the ordinary course of the post) that must be in the time frame, not receipt within that time frame.

This is the part that seems to cause the most confusion. I have consulted 4 specialist traffic lawyers, and of those, 3 were quite adamant that in their opinions, "service" referred to the delivery as opposed to despatch. The other, bless him, could see both sides of the story and really wasn't sure..

Wasn't Flintoff successful by showing the RK had not received NIP within 14 days?

peterguk V6 KWK said:

Zeeky said:

Service is defined in terms of arriving at the address, not arriving in the hands of the accused.

The arriving at the address as opposed to the despatch from the source address..

I agree with this. Para 1a merely defines valid means of service. It doesn't mean, and I suggest this is quite obvious, that service is deemed to have taken place once the method of service has been initiated.

It's just another way of saying service by any other means cannot be deemed to have taken place regardless of when it was sent or received.

I disagree that is quite obvious.
All the legislation says, is that service is sent to arrive within the ordinary course of the post. The important bit there is precisely when it's initiated (& that's what Nicholson v Tapp is about). Nowhere does it state that receipt is a requirement of service, either in the Act or the Interpretation Act.
The time the accused is actually in practice aware of the allegation is not relevant either, the purpose of the legislation is that a reasonable effort is made to make him aware of that allegation, that in the case of a notice being sent to the registered keeper being that it is sent (within the ordinary course of the post) to arrive at his address within 14 days, not that it actually does arrive within 14 days.

IMHO if it were sent a minute before the 14 days were up, then it quite correctly would be judged to have not complied (as stated in Nicholson v Tapp), but if it were sent on the 3rd day but didn't arrive until the 16th day, that would be fine.

Edited by vonhosen on Friday 25th July 01:27

[Andy Zarse]

vonhosen said:

Zeeky said:

peterguk V6 KWK said:

vonhosen said:

It is 'service' (sent to arrive in the ordinary course of the post) that must be in the time frame, not receipt within that time frame.

This is the part that seems to cause the most confusion. I have consulted 4 specialist traffic lawyers, and of those, 3 were quite adamant that in their opinions, "service" referred to the delivery as opposed to despatch. The other, bless him, could see both sides of the story and really wasn't sure..

Wasn't Flintoff successful by showing the RK had not received NIP within 14 days?

peterguk V6 KWK said:

Zeeky said:

Service is defined in terms of arriving at the address, not arriving in the hands of the accused.

The arriving at the address as opposed to the despatch from the source address..

I agree with this. Para 1a merely defines valid means of service. It doesn't mean, and I suggest this is quite obvious, that service is deemed to have taken place once the method of service has been initiated.

It's just another way of saying service by any other means cannot be deemed to have taken place regardless of when it was sent or received.

I disagree that is quite obvious.
All the legislation says, is that service is sent to arrive within the ordinary course of the post. The important bit there is precisely when it's initiated (& that's what Nicholson v Tapp is about). Nowhere does it state that receipt is a requirement of service, either in the Act or the Interpretation Act.

For heaven's sake, why do you keep missing out the bit about it being posted by Reg/Rec post?

[Zeeky]

Nicholsaon v Tapp was about a NIP sent by rec del wasn't it?

I thought we were talking about a situation when service is by First Class Post?

[vonhosen]

Zeeky said:

Nicholsaon v Tapp was about a NIP sent by rec del wasn't it?

I thought we were talking about a situation when service is by First Class Post?

Yes it was, but it still referred to the issue of 'service' being not about when it arrived, but when it was sent to arrive within the ordinary course of the post.

[vonhosen]

Andy Zarse said:

vonhosen said:

Zeeky said:

peterguk V6 KWK said:

vonhosen said:

It is 'service' (sent to arrive in the ordinary course of the post) that must be in the time frame, not receipt within that time frame.

This is the part that seems to cause the most confusion. I have consulted 4 specialist traffic lawyers, and of those, 3 were quite adamant that in their opinions, "service" referred to the delivery as opposed to despatch. The other, bless him, could see both sides of the story and really wasn't sure..

Wasn't Flintoff successful by showing the RK had not received NIP within 14 days?

peterguk V6 KWK said:

Zeeky said:

Service is defined in terms of arriving at the address, not arriving in the hands of the accused.

The arriving at the address as opposed to the despatch from the source address..

I agree with this. Para 1a merely defines valid means of service. It doesn't mean, and I suggest this is quite obvious, that service is deemed to have taken place once the method of service has been initiated.

It's just another way of saying service by any other means cannot be deemed to have taken place regardless of when it was sent or received.

I disagree that is quite obvious.
All the legislation says, is that service is sent to arrive within the ordinary course of the post. The important bit there is precisely when it's initiated (& that's what Nicholson v Tapp is about). Nowhere does it state that receipt is a requirement of service, either in the Act or the Interpretation Act.

For heaven's sake, why do you keep missing out the bit about it being posted by Reg/Rec post?

Because it's not relevant for service.
1(1A)(c) doesn't differentiate, it lumps them together.

The Act doesn't say that service takes place at a different time in respect of recorded delivery or first class post.

You interpret service as sending for recorded delivery & arrival for first class post. I'm saying that service takes place when they are sent for both types of sending, as born out by the Interpretation Act.
The Road Traffic Offenders Act does not clearly in the legislation take a counter view to the Interpretation Act.

Edited by vonhosen on Friday 25th July 01:40

[Andy Zarse]

...I agree, provided you ignore the bit about "unless the contrary is proved"...

[vonhosen]

Andy Zarse said:

...I agree, provided you ignore the bit about "unless the contrary is proved"...

The contrary is proved also doesn't differentiate, it relates to all methods of service.

[Andy Zarse]

vonhosen said:

Andy Zarse said:

...I agree, provided you ignore the bit about "unless the contrary is proved"...

The contrary is proved also doesn't differentiate, it relates to all methods of service.

At last! You've seen the light!

[streaky]

Here's something else to think about:

Section 7 of the Interpretation Act 1978 said:

Where an Act authorises or requires any document to be served by post (whether the expression 'serve' or the expression 'give' or 'send' or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

I wonder whether the scamera pratnerships are using pre- or post-paid franking machines. If the latter, another line of attack might open up based of failure to satisfy the Interpretation Act - Streaky

[vonhosen]

Andy Zarse said:

vonhosen said:

Andy Zarse said:

...I agree, provided you ignore the bit about "unless the contrary is proved"...

The contrary is proved also doesn't differentiate, it relates to all methods of service.

At last! You've seen the light!

I've been aware of that all the time!

The contrary you've got to prove though is 'service' & I'm saying that reading the Act that occurs when it's sent, not when it's received. What you have to show is that it wasn't sent, or it was sent so late as it couldn't expect to be received within the time limits through the ordinary course of the post (whether it is so received within those time limits not being the important thing).

ie
as I said earlier, sent the minute before the 14 days are up wouldn't have been served in time to expect it to arrive within the normal course of the post, but posted on the 3rd day would, even if it didn't get there until outside the 14 days, because service takes place when it's sent.

It was decided in Groome v Driscoll (1969) 113 SJ 905, that a notice of intended prosecution posted the day after the offence which failed to arrive within 14 days was deemed to have been served, whilst conversely in Nicholson v Tapp (1972) 1 WLR 1044, it was held that a notice of intended prosecution sent by recorded delivery on the fourteenth day after the offence was deemed NOT to have been served.

Edited by vonhosen on Friday 25th July 07:25

[SS2.]

vonhosen said:

It was decided in Groome v Driscoll (1969) 113 SJ 905, that a notice of intended prosecution posted the day after the offence which failed to arrive within 14 days was deemed to have been served,

But Groome v Driscoll refers to a notice served by recorded delivery, not first class post.

[peterguk V6 KWK]

vonhosen said:

........... or it was sent so late as it couldn't expect to be received within the time limits through the ordinary course of the post

Is a national, well-publicised postal strike included here? BBC showing mountains of unsorted, undelivered post, and scamera partnership still throwing NIPs into sacks each night.. Doesn't sound very "ordinary" to me..

[TPAC]

peterguk V6 KWK said:

vonhosen said:

........... or it was sent so late as it couldn't expect to be received within the time limits through the ordinary course of the post

Is a national, well-publicised postal strike included here? BBC showing mountains of unsorted, undelivered post, and scamera partnership still throwing NIPs into sacks each night.. Doesn't sound very "ordinary" to me..

Do you know the precise dates of the strikes? If my memory serves me right, there were odd days when no post would go, but a first class letter could be expected to be delayed by only a day or two once it was sent?

[Zeeky]

TPAC said:

Please read the whole section.

Believe me I have read it many times. You quoted para 3 so I asked the relevance of this.

TPAC said:

In plain English, it says that proper service has been made if the notice has been given to the Defendant, dropped off by hand at the correct address, sent by first class post. Or even by recorded delivery or registered post. And as long as the notice has been served in any of these ways, it is down to the Defendant to prove otherwise.

In plain English it says that service 'may' be made, inter alia, by sending the NIP by first class post. It doesn't say service is deemed to have taken place if one of the allowable options is used.

If your 'plain English' interpretation of para 1a is that service is 'made' merely by sending the NIP then what does the accused have to show to prove otherwise?

Back to my original question, what relevance is para 3? Indeed what is the purpose of para 2 if service is made merely by sending out the NIP? It is otiose unless the accused can ordinarily use non-receipt as a defence.

[Zeeky]

vonhosen said:

Zeeky said:

vonhosen said:

Zeeky said:

TPAC said:

Zeeky said:

What is the significance to you of para 2 only referring to rec and reg del when specifically deeming them to be served regardless of whether or not they have been received?

Why was First Class Post left out of this stipulation?

If the rest of the legislation can be construed so as to deny the accused a defence of non-receipt what is the purpose of para 2?

The purpose is to disallow any attempt by the Defendant to escape service by omitting to accept the recorded delivery/registered letter.

That may be the purpose of the part of the para "notwithstanding that the notice was returned as undelivered"

What do you make of

"or was for any other reason not received by him"?

This goes much further than dealing with the accused refusing to accept it and precludes a defence of non-receipt under any circumstances (such as the Royal Mail losing it).

That would be signed for by another who he alleged didn't pass it on.

Rec and reg del is sent to an address not to a person. What would be the difference between someone signing for it and not passing it on and someone picking up the ordinary post from the hall floor and not passing it on?

Service is defined in terms of arriving at the address, not arriving in the hands of the accused.

A defendant saying someone else at his address signed for it but he didn't get it would be in the same situation as a defendant not receiving first class post because someone else picked it up.

It follows then that part of the para "or was for any other reason not received by him" applies equally to rec and reg del and First Class Post.

Service is not defined within the legislation in terms of arriving at the address, it is defined as posted to arrive within the ordinary course of the post within 14 days.

I will persevere with this as I don't think you are getting my point.

If receipt is not relevant to service being made, what relevance is your suggested defence of not having received the NIP after it has been signed for by someone else in the house? The ordinary course of post only requires that it is signed for at the address not by the intended recipient.

The potential defence of refusal to sign is accounted for in para 2 with regards to the notice being returned undelivered but no-one has given an explanation of why rec and reg del needs the additional "or was for any other reason not received by him".

Why does the legislation specifically refer to non-receipt in para 2 and only with respect to rec and reg delivery if non-receipt is not relevant to service in the first place?

[TPAC]

Zeeky said:

vonhosen said:

Zeeky said:

vonhosen said:

Zeeky said:

TPAC said:

Zeeky said:

What is the significance to you of para 2 only referring to rec and reg del when specifically deeming them to be served regardless of whether or not they have been received?

Why was First Class Post left out of this stipulation?

If the rest of the legislation can be construed so as to deny the accused a defence of non-receipt what is the purpose of para 2?

The purpose is to disallow any attempt by the Defendant to escape service by omitting to accept the recorded delivery/registered letter.

That may be the purpose of the part of the para "notwithstanding that the notice was returned as undelivered"

What do you make of

"or was for any other reason not received by him"?

This goes much further than dealing with the accused refusing to accept it and precludes a defence of non-receipt under any circumstances (such as the Royal Mail losing it).

That would be signed for by another who he alleged didn't pass it on.

Rec and reg del is sent to an address not to a person. What would be the difference between someone signing for it and not passing it on and someone picking up the ordinary post from the hall floor and not passing it on?

Service is defined in terms of arriving at the address, not arriving in the hands of the accused.

A defendant saying someone else at his address signed for it but he didn't get it would be in the same situation as a defendant not receiving first class post because someone else picked it up.

It follows then that part of the para "or was for any other reason not received by him" applies equally to rec and reg del and First Class Post.

Service is not defined within the legislation in terms of arriving at the address, it is defined as posted to arrive within the ordinary course of the post within 14 days.

I will persevere with this as I don't think you are getting my point.

If receipt is not relevant to service being made, what relevance is your suggested defence of not having received the NIP after it has been signed for by someone else in the house? The ordinary course of post only requires that it is signed for at the address not by the intended recipient.

The potential defence of refusal to sign is accounted for in para 2 with regards to the notice being returned undelivered but no-one has given an explanation of why rec and reg del needs the additional "or was for any other reason not received by him".

Why does the legislation specifically refer to non-receipt in para 2 and only with respect to rec and reg delivery if non-receipt is not relevant to service in the first place?

It wasn't suggested that any of the above scenarios are defences. On the contrary: The wording is making it clear that the service lies in the sending, and no contentions that the letter was not received by the defendant by virtue of having been sent by registered post or recorded delivery, will invalidate that service.

[Zeeky]

vonhosen said:

Zeeky said:

Nicholsaon v Tapp was about a NIP sent by rec del wasn't it?

I thought we were talking about a situation when service is by First Class Post?

Yes it was, but it still referred to the issue of 'service' being not about when it arrived, but when it was sent to arrive within the ordinary course of the post.

Of course but that is by reference to para 2 which doesn't apply to first class post.

ACKNER J

That section was amended by Schedule 4 to the Road Traffic Act 1962: With the result that there were added the following concluding words:

"and the notice shall be deemed for the purposes of paragraph © of this subsection to have been served on any person if it was sent by registered post or recorded delivery service addressed to him at his last known address, notwithstanding that the notice was returned undelivered or was for any other reason not received by him."

It is clear that without the addition of those words any. notice which had
been sent by registered post would, by reason of section 26 of the Interpretation Act 1889: be deemed to have been effected at the time when the letter would be delivered in the ordinary course of post, unless the contrary was proved. Reg. v. London County Quarter Sessions Appeals Committee Ex parte Rossi [1956] 1 Q.B. 682 indicates how proof that in fact the document did not arrive in the ordinary course of post nullifies the presumption which would otherwise exist.

I take the view that that amendment was designed to ensure that the presumption that a document which if delivered in the ordinary course of post would arrive within 14 days, was not to be gainsaid by the de facto proof that it had not in fact arrived within that period. Hence the words "notwithstanding that the notice was returned undelivered or was for any other reason not received by him."

It is unequivocal that this authority for receipt being unnecessary is from para 2, not the rest of the legislation. (I understand the legs have been updated now but are the same save for the addition of 1a).

You cannot use authority from para 2 to decide what is necessary in the case of first class post.

I agree with you that in any event the notice must be sent so it would arrive within 14 days in the ordinary course of the post but cannot accept the Court's reasoning clearly based on non-receipt referred to in para 2 as being relevant to first class post when this means of service was specifically omitted from the list.

This takes us back to 1a which merely says that service 'may' be made by 1st class post. It takes a certain amount of creativity in interpretation to read this as 'service is deemed to have been made' when sent by by first class post.

[TPAC]

Zeeky said:

vonhosen said:

Zeeky said:

Nicholsaon v Tapp was about a NIP sent by rec del wasn't it?

I thought we were talking about a situation when service is by First Class Post?

Yes it was, but it still referred to the issue of 'service' being not about when it arrived, but when it was sent to arrive within the ordinary course of the post.

Of course but that is by reference to para 2 which doesn't apply to first class post.

ACKNER J

That section was amended by Schedule 4 to the Road Traffic Act 1962: With the result that there were added the following concluding words:

"and the notice shall be deemed for the purposes of paragraph © of this subsection to have been served on any person if it was sent by registered post or recorded delivery service addressed to him at his last known address, notwithstanding that the notice was returned undelivered or was for any other reason not received by him."

It is clear that without the addition of those words any. notice which had
been sent by registered post would, by reason of section 26 of the Interpretation Act 1889: be deemed to have been effected at the time when the letter would be delivered in the ordinary course of post, unless the contrary was proved. Reg. v. London County Quarter Sessions Appeals Committee Ex parte Rossi [1956] 1 Q.B. 682 indicates how proof that in fact the document did not arrive in the ordinary course of post nullifies the presumption which would otherwise exist.

I take the view that that amendment was designed to ensure that the presumption that a document which if delivered in the ordinary course of post would arrive within 14 days, was not to be gainsaid by the de facto proof that it had not in fact arrived within that period. Hence the words "notwithstanding that the notice was returned undelivered or was for any other reason not received by him."

It is unequivocal that this authority for receipt being unnecessary is from para 2, not the rest of the legislation. (I understand the legs have been updated now but are the same save for the addition of 1a).

You cannot use authority from para 2 to decide what is necessary in the case of first class post.

I agree with you that in any event the notice must be sent so it would arrive within 14 days in the ordinary course of the post but cannot accept the Court's reasoning clearly based on non-receipt referred to in para 2 as being relevant to first class post when this means of service was specifically omitted from the list.

This takes us back to 1a which merely says that service 'may' be made by 1st class post. It takes a certain amount of creativity in interpretation to read this as 'service is deemed to have been made' when sent by by first class post.

Any chance of writing the above more succinctly, so that I can understand it, please?