Had my day in court .....and won!

[planetdave]

1st class post?

My personal postie was found to have taken thousands of letters home with him (to burn - he couldn't hack the work rate). He wasn't spotted for months since 99% of the mail was circulars and no-one noticed them missing.

[Flat in Fifth]

cheers dvd,

knew there was a logical reason why you'd inserted the text and in ( ).

I suppose they do this to keep the legal beagles happy. ie insert bits of legislation modifying other bits of legilsation embedded all over the place, then bring it all into power in fits and starts.

I'd failed to google an answer which was why I asked.

FiF

[Boosted Ls1]

planetdave said:

1st class post? My personal postie was found to have taken thousands of letters home with him (to burn - he couldn't hack the work rate). He wasn't spotted for months since 99% of the mail was circulars and no-one noticed them missing.

If you can prove that then it may save your bacon should a NIP be sent out to you. If you have already made a complaint to the Royal Mail then it would cast a lot of doubt as to the postal service being reliable and the NIP being received.

Boosted.

[planetdave]

Unfortunately he was sacked (postie? sacked? excellent!) and replaced by someone with less incendiary habits.

[towman]

DVD. Probably a dumb question, but are records kept of the court results and the reason for that result? Do I have access to those ?

[Dwight VanDriver]

Magistrates Clerks Office will keep a record of cases dealt with at Court and the result but not the reason why the Bench reached the decision.

dvd

[kenp]

Dwight VanDriver said:

Magistrates Clerks Office will keep a record of cases dealt with at Court and the result but not the reason why the Bench reached the decision. dvd

I can confirm that. Had a couple of judicial review cases (lodged within 28 days at High Court) where the clerk asked us all for our reasons some 2 months after the event. These were then compiled into a summary and submitted as an affadavit.

[purpleheadedcerb]

stone said:

Good for you Towman I don't think I'm going to be so lucky. I've just received a summons for failing to identify the driver. My car was clocked at an outrageous 67 in a 60mph section of dual carriageway in North Wales. I originally requested a photo which shows 2 blobs in the car. I then responded with names and addresses of those driving the vehicle on the day. They have left it for 3 months and then last week I received a summons to appear before the magistrates at the end of the month I'm not entirely sure what to do now. Any suggestions Is the verdict a foregone conclusion before I get to the court??

I've had that situation presented to me a number of times and never been summonsed. I've always responded with who the driver could be, offered to donate the £80 fine to a charity that deals with victims of speeding related offences and asked for any help they can provide to me to assist in identifying the driver.

I have then received a letter basically saying, "You really must tell us who was driving etc". I have then said, A) I can't tell from the picture, B) Its a long time ago and I can't remember C) I don't keep a log of who drives my car as I wasn't aware I was required to do so under law. Please tell me which Act requires me to do this.

As I say. Its never gone to court. I always get a letter saying, "If further evidence comes to light then we will prosecute." I've never dealt with North Wales though. At the end of the day S172 is a stupid piece of legislation which assumes people have Mastermind memories or keep vehicle logs they aren't required to.

Best of luck.

Scott

[towman]

stone said:

Good for you Towman I don't think I'm going to be so lucky. I've just received a summons for failing to identify the driver. My car was clocked at an outrageous 67 in a 60mph section of dual carriageway in North Wales. I originally requested a photo which shows 2 blobs in the car. I then responded with names and addresses of those driving the vehicle on the day. They have left it for 3 months and then last week I received a summons to appear before the magistrates at the end of the month I'm not entirely sure what to do now. Any suggestions Is the verdict a foregone conclusion before I get to the court??

My suggestions (bear in mind I`m no expert !)

Go to court.
Show the photograph.
If you have had NIPs before and have responded, mention that.
Try and show you are not attempting to hide anything.
Offer the 3 names. Each will have the defence of "it wasn`t me - prove it" if summonsed.

Good Luck

Incidently, I was asked to step into the wirness box and swear under oath that I had made every effort to identify the driver.

Also I had one small victory - the prosecutor kept referring to the "Ferguson" and "Hamilton" defences. I took great joy in raising my hand and asking innocently if he could explain what that meant as I had never heard of it before.

[swilly]

Ive never had a NOIP by first class post let alone registered or recorded.

Always franked second class.

Surely the SCP are therefore opening themselves up to falling foul of the conditions required for assuming delivery.

[malman]

Isn't second class postage of a NIP one of the "get out of £60 fine free" cards?

[swilly]

OK maybe the more knowledgable on here can provide an answer......

Can i just throw away 2nd class delivered NOIPS (assuming im willing to claim they never arrived when it gets to court, by drawing out of the SCP the class of post used) ?????

[BliarOut]

malman said:

Isn't second class postage of a NIP one of the "get out of £60 fine free" cards?

Absolutely

[Observer2]

Dwight VanDriver said:

Sect 1 (2) Road Traffic Offenders Act 1988..."A notice (NOIP) shall be deemed to have been served on a person if it was sent by registered post or recorded delivery service (or first class post) to him at his last known address...... Section 7 The Interpretation Act 1978 in similar vein, proof of postage document served. All UDP had to do was produce Certificate of Posting which would have proved document sent and in sufficient time for it to be received within 14 days and you should have been doomed.

I disagree with you DVD. The Interpretation Act creates a 'rebuttable presumption' that the NIP was served if it is shown that it was posted in "sufficient time". However, the presumption can be rebutted by evidence that it was not actually delivered (e.g. testimony of the addressee to that effect). Thus a person who does not receive the original NIP but receives a re-issued or reminder NIP at a later date (issued later than 14 days after the offence) cannot or should not be convicted of the speeding offence if he can convince the court that the original NIP was not, in fact, received (provided there are no circumstances which reasobnably would have prevented the service of the NIP within the 14 days - such as change of address, change of RK etc).

It must be noted that there is no time limit for service of a s.172 notice so failure to identify the driver following receipt of a reminder NIP will be an offence under s.172.

[Dwight VanDriver]

Firstly there is no requirement in the Act for Prosecution to prove a NOIP was received. Merely that it was posted in time in the approved manner.

Under the rules of evidence the service of any process or other document required or authorised to be served, the proper addressing, pre-paying and posting or registration for the purpose of service of a letter containing such a document and the place, date and time of posting or registration of any such letter may be proved in any proceedings before a Mags. Crt by a document purporting to be a certificate signed by the person by whom the service was effected or the letter posted or registered.

Certificate of Service :Form 142 (Mags. Crt Rules 1981 r.67, 99(6))
I ........ of ........hereby certify served ...........of.......... with the Notice of Intended Prosecution, of which is a true copy by sending the said Notice by (type)post to him/her in a prepaid letter posted by me at the ........Post Office situate at......... at .....o'clock in the .......noon on the .....dayof........2005
and addressed to ........being his/her last known (or usua place of abode.
dated the......day of..........2005. Signed..............

So AB comes to Court. NOIP is deemed to have been served until such time as defendant alleges that NOIP has not been sent or out of time etc.
As I said earlier all that CPS have then to do is produce the above Certificate and copy NOIP (marked to the effect that this is the document marked A refered to in the Certificate of posting of...) to refute what AB has said.

If CPS cannot do it then AB most likely to get off.

dvd

[Observer2]

Dwight VanDriver said:

Firstly there is no requirement in the Act for Prosecution to prove a NOIP was received. Merely that it was posted in time in the approved manner.

Of course service of the NIP must be proved if the defence makes an issue of it. A certificate of posting and section 7 Interpretation Act creates a 'rebuttable presumption' that a document was sent but it does not prove that it was served, absent express statutory provision to the contrary. Thus:

Subsection 1(2) RTOA:

(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.

Note that subsection (2) applies only to registered/recorded delivery post, which was the ONLY permitted method of postal service of a NIP until (as you pointed out) section 6 of schedule 9 CJPO 1994 authorised service by first class post. However, section (2) does not apply to first class post. It must follow that the presumption of service of a NIP created by section 7 Interpretation Act is capable of being rebutted, where it is served by first class post, otherwise subsection (2) serves no purpose.




>> Edited by Observer2 on Wednesday 23 November 13:08

[Dwight VanDriver]

Interesting my friend.

I accept your Section 1 (2) and raise you Section 1(3):

"The requirement of sub section (1)(manner and method of service) shall in every case be deemed to have been complied with unless and until the contrary is proved."

Not for the prosecution to prove service (but they generally do) but the defendant to disprove and that non of the listed methods of service were used (Sanders v Scott 1961). Merely to raise a doubt is not enough (Offen v Ranson 1980).

As stated if CPS produce that magic certificate where is the doubt?

dvd

[observer2]

Dwight VanDriver said:

Interesting my friend. I accept your Section 1 (2) and raise you Section 1(3): "The requirement of sub section (1)(manner and method of service) shall in every case be deemed to have been complied with unless and until the contrary is proved." Not for the prosecution to prove service (but they generally do) but the defendant to disprove and that non of the listed methods of service were used (Sanders v Scott 1961). Merely to raise a doubt is not enough (Offen v Ranson 1980). As stated if CPS produce that magic certificate where is the doubt? dvd

Good to see you have an open mind dvd.

On subsection (3)(I think you added "manner and method of service", there is clearly a degree of overlap between that and s.7 Int. Act. However, ss.(3) is more wide-ranging as it covers the alternatives to a NIP as stated in s,1(a) and (b). So on the narrower issue of postal service, s.7 Int Act comes into play. Anyway, "unless the contrary is proved" opens the door to proof of non-service.

I don't have access to the cases you mentioned but would agree that some 'proof' of non-service is needed to allow the defendant to succeed with a claim of non-service.

The full chain of reasoning that supports the availability of a non-service defence is this:

1. It is undeniable that some documents sent by post fail to reach their destination.

2. It is impossible to argue that NIPs are immune to that risk.

3. Therefore some NIPs actually posted will, for whatever reason, be 'lost' in course of post.

4. The authorities can preclude the risk of actual non-service by using registered post/recorded delivery (or by personal service).

5. Mostly, they choose not to do so. So, where a NIP has been sent by first class post, it must be open to a defendant to prove non-service by direct testimony to that effect.

6. The authorities can prove that a NIP was posted but proof of posting is merely that. It does not prove service.

7. If proof of posting can by itself create an irrebuttable presumption of service, ss.(2) would have no purpose.

8. So it must be possible to rebut the presumption of service. Accepting that to be true, the only remaining issue is - what standard of proof is needed?

9. It seems to me that the uncontested sworn testimony of a witness (even a partial witness) to the effect that a NIP was not, in fact, received must be persuasive evidence of that fact absent reasonable cause to believe that the witness is perjuring himself.

QED?

[towman]

So was my "not guilty" lucky or justified.

Very interesting debate above. Thanks chaps.

[Observer2]

towman said:

So was my "not guilty" lucky or justified.

It was completely justified. Subsection 172(7) permits postal service of a s.172 notice so s.7 Int. Act applies to ceate a rebuttable presumption that it was served if, as in your case, the prosecution produces evidence that it was posted. You rebutted the presumption by giving evidence (I assume under oath) that it was not received. Therefore, the court either had to find that were lying or had to dismiss the charge.

The debate I've been having with dvd is a separate one about section 1 RTOA, but the same principles apply where a NIP is sent by first class post.