Had my day in court .....and won!
Discussion
Stamps foot...
I'm not having that Mr Observer. To hell with the certificate of posting under the Mags Court Rules, I am going to call the person posting the bladdy Notice and he will give evidence ON OATH that he did so and in time. Act complied with in entirity.
Get out of that.... (reaches for pot)
dvd
PS Just heard my witness is on holidays in Sarf of Frogland so bringing him home for trial. His expenses are quite enormous.........
>> Edited by Dwight VanDriver on Thursday 24th November 15:37
I'm not having that Mr Observer. To hell with the certificate of posting under the Mags Court Rules, I am going to call the person posting the bladdy Notice and he will give evidence ON OATH that he did so and in time. Act complied with in entirity.
Get out of that.... (reaches for pot)
dvd
PS Just heard my witness is on holidays in Sarf of Frogland so bringing him home for trial. His expenses are quite enormous.........
>> Edited by Dwight VanDriver on Thursday 24th November 15:37
Yes - the 'bluff and bluster' approach will work 99% of the time but, if there is no 'safe harbour' as provided by subsection 1(2) RTOA, proof of posting is just not enough to defeat evidence that actual service was not achieved. I'm sure the prosecuting authorities are reluctant to acknowledge the possibility that a defendant can 'walk' on such a technicality but they do have the option of paying a bit more to guarantee that the strict legal requirement is satisfied.
towman said:
The vehicle in question is one of my Taxis and I am not insured to drive it! Prosecutor got really snotty and lectured me on how to keep records of who was driving the car.
I'm amazed by this. Even if there's no strict legal requirement (which is the bit that amazes me) I still would have expected there are all sorts of reasons (not just motoring related; like tax, assault allegations etc etc) why a court would expect that you should know *exactly* who is driving your Taxi's at all times.
How do they prove posting?
I am assuming that all of these things are automatically printed and stuffed in envelopes by machine and then taken to a royal mail sorting office in bulk??
so where's the little bit of paper with a PO or royal mail stamp that says that on "whatever date" an envelope addressed to "whoever" was handed over to royal mail or an agent of royal mail (PO) to be delivered.
The fact that they printed it doesnt prove it was posted does it??
Or am I missing something?
I am assuming that all of these things are automatically printed and stuffed in envelopes by machine and then taken to a royal mail sorting office in bulk??
so where's the little bit of paper with a PO or royal mail stamp that says that on "whatever date" an envelope addressed to "whoever" was handed over to royal mail or an agent of royal mail (PO) to be delivered.
The fact that they printed it doesnt prove it was posted does it??
Or am I missing something?
deva link said:
The vehicle in question is one of my Taxis and I am not insured to drive it! Prosecutor got really snotty and lectured me on how to keep records of who was driving the car.
I'm amazed by this. Even if there's no strict legal requirement (which is the bit that amazes me) I still would have expected there are all sorts of reasons (not just motoring related; like tax, assault allegations etc etc) why a court would expect that you should know *exactly* who is driving your Taxi's at all times.
Earlier this year, wish I had made a note, there was an appeal to Teesside Crown Court by a bloke who was reported under S172 (Fail to name)and convicted at Mags Court. Apparently he owned a number of vehicles and his excuse was he could't find out who the driver of one of them was when it was flashed. At Crown Court it was reported that the Judge reluctantly accepted the defence and aquitted. But the Judge did state that if a number of vehicles were involved then records should be kept.
I believe Fif is aware of this case and will corroborate?
dvd
Dwight VanDriver said:
The vehicle in question is one of my Taxis and I am not insured to drive it! Prosecutor got really snotty and lectured me on how to keep records of who was driving the car.
I'm amazed by this. Even if there's no strict legal requirement (which is the bit that amazes me) I still would have expected there are all sorts of reasons (not just motoring related; like tax, assault allegations etc etc) why a court would expect that you should know *exactly* who is driving your Taxi's at all times.
Earlier this year, wish I had made a note, there was an appeal to Teesside Crown Court by a bloke who was reported under S172 (Fail to name)and convicted at Mags Court. Apparently he owned a number of vehicles and his excuse was he could't find out who the driver of one of them was when it was flashed. At Crown Court it was reported that the Judge reluctantly accepted the defence and aquitted. But the Judge did state that if a number of vehicles were involved then records should be kept.
I believe Fif is aware of this case and will corroborate?
dvd
It's not just the owning of a number of vehicles, it's the fact that they're Taxi's. Is there not some sort of 'Taxi Regulations' (perhaps local authority rules, rather than law) that require records to be kept of drivers?
deva link said:
The vehicle in question is one of my Taxis and I am not insured to drive it! Prosecutor got really snotty and lectured me on how to keep records of who was driving the car.
I'm amazed by this. Even if there's no strict legal requirement (which is the bit that amazes me) I still would have expected there are all sorts of reasons (not just motoring related; like tax, assault allegations etc etc) why a court would expect that you should know *exactly* who is driving your Taxi's at all times.
Look at it another way...
If a hire company rents out a car with a few additional drivers, should the hire co ask that records be kept of who was driving at any particular time?
Dwight VanDriver said:
I believe Fif is aware of this case and will corroborate?
Been busy today and can't find the ins amd outs, and not exactly in a position to do so.
At the moment my only corrob, such as it exists, is on the basis that I too can remember this case but cannot find the details. (For some reason Judge Ticehurst's name keeps popping into my head but I know this is not the case in question, that concerned unsigned NoIPs back in 2002ish from top of head.)
Sorry DVD I'll have to take a lesson from obi-wan and adopt your filing system because today I really cannot feel the force.
>> Edited by Flat in Fifth on Friday 25th November 21:54
Dwight VanDriver said:
Stamps foot...
I'm not having that Mr Observer. To hell with the certificate of posting under the Mags Court Rules, I am going to call the person posting the bladdy Notice and he will give evidence ON OATH that he did so and in time. Act complied with in entirity.
Get out of that.... (reaches for pot)
dvd
PS Just heard my witness is on holidays in Sarf of Frogland so bringing him home for trial. His expenses are quite enormous.........
>> Edited by Dwight VanDriver on Thursday 24th November 15:37
<Arrives late...Throws in tuppence>
How does proof of posting create proof of service? If signed-for delivery is used then the presumption cannot be rebutted as spelled out sub-section 2 of the Road Traffic Offenders Act. There is no such subsection for normal mail (i.e. the "notwithstanding that the notice was returned as undelivered or was for any other reason not received by him"
. There is only a presumption that the notice is served if first class mail is used - but (as O2 points out) it has to be rebuttable. Otherwise subsection 2 would be meaningless, and subsection 3 would take its name and place.
No?
No
Section 1 Road Traffic Offenders Act 1988 states (1A) a Notice required to be served on any person MAY BE SERVED ON THAT PERSON by sending it by registered post, recorded delivery or first class post addressed to him at last known address (1A (c)).
My note on Groome v Driscoll [1969] in which it is stated... notice under 1A (c) deemed to have been served within 14 days provided it was posted as required.......
So if CPS go through the whole hog of proving posting by evidence of Certificate and oral evidence of person posting, by law it has been served, so how can one rebut that?
dvd
Section 1 Road Traffic Offenders Act 1988 states (1A) a Notice required to be served on any person MAY BE SERVED ON THAT PERSON by sending it by registered post, recorded delivery or first class post addressed to him at last known address (1A (c)).
My note on Groome v Driscoll [1969] in which it is stated... notice under 1A (c) deemed to have been served within 14 days provided it was posted as required.......
So if CPS go through the whole hog of proving posting by evidence of Certificate and oral evidence of person posting, by law it has been served, so how can one rebut that?
dvd
Dwight VanDriver said:
My note on Groome v Driscoll [1969] in which it is stated... notice under 1A (c) deemed to have been served within 14 days provided it was posted as required.......
<Throws in another tuppence>
Ah, but is Groome v Driscoll analagous? I venture not. In that particular case (1969), signed-for delivery was standard at the time - so the Road Traffic Act 1962 schedule 4 (which was an amendment to the 1960 RTA) is applicable:
"Subject to the following provisions of this section, where a person is prosecuted for an offence to which this section applies he shall not be convicted unless . . . (c) within the said fourteen days a notice of the intended prosecution specifying the nature of the alleged offence and the time and place where it is alleged to have been committed, was . . . (ii) . . . served on him, or on the person, if any, registered as the owner of the vehicle at the time of the commission of the offence; And the notice shall be deemed for the purposes of paragraph (c) of this subsection to have been served on any person if it was sent by registered post or recorded delivery addressed to him at his last known address, not withstanding that the notice was returned as undelivered or was for any other reason not received by him."
So when a NIP is sent out by recorded delivery (or equivelant), and so long as there is sufficient proof of this (i.e. proof of posting), then the service cannot be rebutted.
In the circumstances you describe (first class), there is no such irrebuttable presumption. I say again (and so has Ob2): what is the point of ss.2 of the Road Traffic Offenders Act if first class mail cannot be rebutted?
Point taken DM but being only a lowly old Plod I still think that Sch 9 (6) (3) of Criminal Justice and Public Order Act 1994 that added First Class Post to S 1 RTOA 88 was an intention to bring it line with service same as Reg or Rec Del.
I appreciate your argument could well be expounded by the Wigged Ones.
However Section 7 Intrepretation Act 1978 tends to confirm service by ANY type of post if done correctly, but as you say Second Class is precluded in RTOA.
dvd
I appreciate your argument could well be expounded by the Wigged Ones.
However Section 7 Intrepretation Act 1978 tends to confirm service by ANY type of post if done correctly, but as you say Second Class is precluded in RTOA.
dvd
ACPO said:
16.7 Prosecution Procedures and advice on Good Practice Schedule 9 Paragraph 6(3) to the Criminal Justice and Public Order Act, 1994 amends Section 1 of The Road Traffic Offenders Act, 1988 to provide for the service of NIP's by first class post. To ensure service can be proven, initial Service of Notice of Intended Prosecution and Section 172 Notices should be made by recorded delivery.
Are we to assume, therefore, that service cannot be proven if "only" first class is used? Hmmmm...
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