NIP after 16 Days - Pleading Not Guilty - Update
Discussion
mybrainhurts said:
SS2 said:
A notice which has been posted by recorded delivery is deemed as 'served' at the time when it would be delivered in the normal course of post, even if the notice is not delivered. So even if an accused does not receive a notice sent by recorded delivery, they cannot rely on non-service of the notice as a defence - RTOA '88 1. (2).
Fair and just...? My arse.I think you want Nicholson v Tapp
Summary
Abstract: A notice of intended prosecution posted on the fourteenth day after the alleged offence does not comply with the provisions of the Road Traffic Act 1960 s. 241(2) (as amended). A notice of intended prosecution for an alleged offence of dangerous driving was posted to T by recorded delivery service on the fourteenth day after the incident in question.
Summary: Held, the notice did not comply with s. 241(2) of the Road Traffic Act 1960 (as amended). (R. v London County Quarter Sessions Appeals Committee Ex p. Rossi [1956] C.L.Y. considered).
Cases Cited
R. v London County Quarter Sessions Appeals Committee Ex p. Rossi, [1956] 1 Q.B. 682; [1956] 2 W.L.R. 800; [1956] 1 All E.R. 670; (1956) 120 J.P. 239; (1956) 100 S.J. 225 (CA)
Legislation Cited
As amended by Road Traffic Act 1962 s. 51
Road Traffic Act 1962
Road Traffic Act 1960 s. 241
Full Judgement:
[QUEEN'S BENCH DIVISION]
NICHOLSON v. TAPP
1972 June 9
Melford Stevenson, Bridge and Ackner H.
Road Traffic-Notice of 'intended prosecution-Service of notice -
Sending by recorded delivery service on 14th day after commission of offence - -Whether sufficient-Road Traffic Act 1960 (8 & 9 Eliz. 2, c. 16), s. 241 (2) (as amended by Rood TrafficAct 1962 (1O & 11 Eliz. 2, c. 59), s. 51, Sch. 4)
By section 241 (2) of the Road Traffic Act 1960 as amended:
" . . . where a person is prosecuted for an offence to which this section applies he shall not be convicted unless ". . . (c ) within. . . 14 days a notice of the intended prosecution . . . was. . . served on him . . . 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 . . . recorded delivery service. . ."
On the 14th day after the commission of an offence to which section 241 of the Road Traffic Act 1960 as amended applied a notice of intended prosecution was sent to the defendant by recorded delivery service, and an information was preferred against him for the offence. The justices dismissed the information on the ground that the prosecutor had failed to comply with section 241 (2).
On appeal by the prosecutor: -
Held, dismissing the appeal, that the decision of the justices was right.
Per curiam. Clear statutory language would have been used if the intention had been to extend the period of time beyond 14 days where the prosecution use the Post Office facilities instead of effecting personal service (post, p. 1046D).
Reg. v. London County Quarter Sessions Appeals Committee, Ex parte Rossi [1956] 1 Q.B. 682, D.C. considered.
The following cases are referred to in the judgment:
Groome v. Driscoll (Note) [1969] 3 All E.R. 1638; [1970] R.T.R. 105, D.C.
Reg. v. London County Quarter Sessions Appeals Committee, Ex parte Rossi [1956] 1 Q.B. 682; [1956] 2 W.L.R. 800; [1956] 1 All E.R. 670, C.A.
The following additional case was cited in argument:
Beer v. Davies [1958] 2 Q.B. 187; [1958] 2 W.L.R. 920; [1958] 2 All
E.R. 255, D.C.
CASE STATED by Northamptonshire justices.
On January 28, 1972, an information was laid by the prosecutor, Thom Fisher Macmillan Nicholson, against the defendantl Barry Trevor Tapp that he on November 17, 1971, drove a motor car on Wellingborough Road at the Junction With Bouverie Street, Northampton in a manner which was dangerous to the public, having regard to all the circumstances of the case, contrary to section 2 of the Road Traffic Act 1960.
The justices heard the information on March 13, 1972, and found the following facts. The defendant was the driver of a motor car which was alleged was driven in a manner dangerous, as stated in the information on November 15, 1971. The police constable who interviewed the defendant at at the scene of the alleged offence did not give a verbal notice of intended prosecution. A summons was not served on the defendant in 14 days immediately following the commission of the alleged offence. A written notice of intended prosecution was sent, by recorded delivery post on November 29, 1971, being the 14th day after the alleged offence.
At the conclusion of the evidence for the prosecutor and defendant it was submitted for the defendant that the prosecutor had failed to comply with the provisions of section 241 of the Road Traffic Act 1960 as amended. The solicitor for the defendant referred to Stone's Justices' Manual, 1971 ed., p. 3093, footnote (a) which cited Groome v. Driscoll (Note) [1969] 3 All E.R. 1638 in support of his submission.
The justices upheld the submission of the defendant's solicitor and dismissed the information.
The prosecutor appealed.
The question for the opinion of court was whether the justices were correct in upholding the submission of the defendant's solicitor and dismissing the information.
David Barker for the prosecutor.
The defendant did not appear and was not represented.
MELFORD STEVENSON J. Ackner J. will deliver the first judgment.
ACKNER J. This is a case stated by Northamptonshire justices in relation to a decision which they reached on January 28, 1972, relative to an information laid against the defendant that he on November 15, 1971, drove a motor car in Wellingborough Road, Northampton in a manner which was dangerous to the public. It was established that he was the driver of the motor car which it was alleged had been driven in a manner dangerous; that the police constable who interviewed him did not give a verbal notice of intended prosecution; that a summons was not served on the defendant within 14 days immediately following the commission of the alleged offence; and that a written notice of intended prosecution was sent by recorded delivery post on November 29, 1971, that being, and I stress, the 14th day after the alleged offence.
At the conclusion of the evidence it was submitted by the solicitor for the defendant that the prosecutor had failed to comply with the provisions of section 241 of the Road Traffic Act 1960 as amended, which submission was accepted by the justices. That Act as amended is conveniently set out in its amended form in the case on which the prosecutor in fact relies in
this court, Groome v. Driscoll (Note) [1969] 3 All E.R.. 1638. It reads:
" (2) 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. . . © within the said 14 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."
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."
Mr. Barker's argument is and must be that that amendment enables the prosecution, when serving by post, to have another day or perhaps even another two days longer than if they had effected personal service, because on his submissions it would be open to the prosecution to post a letter one minute before midnight on the 14th day. That clearly would mean that, in the ordinary course of post, the addressee would not receive it until the 15th or even the 16th day. If that amendment had been intended to extend the period of time where the procedure of using the Post Office facilities were adopted it would have said so in very clear language. In my judgment all the amendment created by Schedule 4 to the Act of 1962 did was to prevent a defendant establishing that, although a document had been despatched in time enough to reach him in the ordinary course of post within the statutory 14 days, de facto it had not done so.
Accordingly in my judgment the justices were right in their decision and accordingly this appeal should be dismissed.
MELFORD STEVENSON J. I agree.
BRIDGE J. I also agree.
Summary
Abstract: A notice of intended prosecution posted on the fourteenth day after the alleged offence does not comply with the provisions of the Road Traffic Act 1960 s. 241(2) (as amended). A notice of intended prosecution for an alleged offence of dangerous driving was posted to T by recorded delivery service on the fourteenth day after the incident in question.
Summary: Held, the notice did not comply with s. 241(2) of the Road Traffic Act 1960 (as amended). (R. v London County Quarter Sessions Appeals Committee Ex p. Rossi [1956] C.L.Y. considered).
Cases Cited
R. v London County Quarter Sessions Appeals Committee Ex p. Rossi, [1956] 1 Q.B. 682; [1956] 2 W.L.R. 800; [1956] 1 All E.R. 670; (1956) 120 J.P. 239; (1956) 100 S.J. 225 (CA)
Legislation Cited
As amended by Road Traffic Act 1962 s. 51
Road Traffic Act 1962
Road Traffic Act 1960 s. 241
Full Judgement:
[QUEEN'S BENCH DIVISION]
NICHOLSON v. TAPP
1972 June 9
Melford Stevenson, Bridge and Ackner H.
Road Traffic-Notice of 'intended prosecution-Service of notice -
Sending by recorded delivery service on 14th day after commission of offence - -Whether sufficient-Road Traffic Act 1960 (8 & 9 Eliz. 2, c. 16), s. 241 (2) (as amended by Rood TrafficAct 1962 (1O & 11 Eliz. 2, c. 59), s. 51, Sch. 4)
By section 241 (2) of the Road Traffic Act 1960 as amended:
" . . . where a person is prosecuted for an offence to which this section applies he shall not be convicted unless ". . . (c ) within. . . 14 days a notice of the intended prosecution . . . was. . . served on him . . . 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 . . . recorded delivery service. . ."
On the 14th day after the commission of an offence to which section 241 of the Road Traffic Act 1960 as amended applied a notice of intended prosecution was sent to the defendant by recorded delivery service, and an information was preferred against him for the offence. The justices dismissed the information on the ground that the prosecutor had failed to comply with section 241 (2).
On appeal by the prosecutor: -
Held, dismissing the appeal, that the decision of the justices was right.
Per curiam. Clear statutory language would have been used if the intention had been to extend the period of time beyond 14 days where the prosecution use the Post Office facilities instead of effecting personal service (post, p. 1046D).
Reg. v. London County Quarter Sessions Appeals Committee, Ex parte Rossi [1956] 1 Q.B. 682, D.C. considered.
The following cases are referred to in the judgment:
Groome v. Driscoll (Note) [1969] 3 All E.R. 1638; [1970] R.T.R. 105, D.C.
Reg. v. London County Quarter Sessions Appeals Committee, Ex parte Rossi [1956] 1 Q.B. 682; [1956] 2 W.L.R. 800; [1956] 1 All E.R. 670, C.A.
The following additional case was cited in argument:
Beer v. Davies [1958] 2 Q.B. 187; [1958] 2 W.L.R. 920; [1958] 2 All
E.R. 255, D.C.
CASE STATED by Northamptonshire justices.
On January 28, 1972, an information was laid by the prosecutor, Thom Fisher Macmillan Nicholson, against the defendantl Barry Trevor Tapp that he on November 17, 1971, drove a motor car on Wellingborough Road at the Junction With Bouverie Street, Northampton in a manner which was dangerous to the public, having regard to all the circumstances of the case, contrary to section 2 of the Road Traffic Act 1960.
The justices heard the information on March 13, 1972, and found the following facts. The defendant was the driver of a motor car which was alleged was driven in a manner dangerous, as stated in the information on November 15, 1971. The police constable who interviewed the defendant at at the scene of the alleged offence did not give a verbal notice of intended prosecution. A summons was not served on the defendant in 14 days immediately following the commission of the alleged offence. A written notice of intended prosecution was sent, by recorded delivery post on November 29, 1971, being the 14th day after the alleged offence.
At the conclusion of the evidence for the prosecutor and defendant it was submitted for the defendant that the prosecutor had failed to comply with the provisions of section 241 of the Road Traffic Act 1960 as amended. The solicitor for the defendant referred to Stone's Justices' Manual, 1971 ed., p. 3093, footnote (a) which cited Groome v. Driscoll (Note) [1969] 3 All E.R. 1638 in support of his submission.
The justices upheld the submission of the defendant's solicitor and dismissed the information.
The prosecutor appealed.
The question for the opinion of court was whether the justices were correct in upholding the submission of the defendant's solicitor and dismissing the information.
David Barker for the prosecutor.
The defendant did not appear and was not represented.
MELFORD STEVENSON J. Ackner J. will deliver the first judgment.
ACKNER J. This is a case stated by Northamptonshire justices in relation to a decision which they reached on January 28, 1972, relative to an information laid against the defendant that he on November 15, 1971, drove a motor car in Wellingborough Road, Northampton in a manner which was dangerous to the public. It was established that he was the driver of the motor car which it was alleged had been driven in a manner dangerous; that the police constable who interviewed him did not give a verbal notice of intended prosecution; that a summons was not served on the defendant within 14 days immediately following the commission of the alleged offence; and that a written notice of intended prosecution was sent by recorded delivery post on November 29, 1971, that being, and I stress, the 14th day after the alleged offence.
At the conclusion of the evidence it was submitted by the solicitor for the defendant that the prosecutor had failed to comply with the provisions of section 241 of the Road Traffic Act 1960 as amended, which submission was accepted by the justices. That Act as amended is conveniently set out in its amended form in the case on which the prosecutor in fact relies in
this court, Groome v. Driscoll (Note) [1969] 3 All E.R.. 1638. It reads:
" (2) 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. . . © within the said 14 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."
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."
Mr. Barker's argument is and must be that that amendment enables the prosecution, when serving by post, to have another day or perhaps even another two days longer than if they had effected personal service, because on his submissions it would be open to the prosecution to post a letter one minute before midnight on the 14th day. That clearly would mean that, in the ordinary course of post, the addressee would not receive it until the 15th or even the 16th day. If that amendment had been intended to extend the period of time where the procedure of using the Post Office facilities were adopted it would have said so in very clear language. In my judgment all the amendment created by Schedule 4 to the Act of 1962 did was to prevent a defendant establishing that, although a document had been despatched in time enough to reach him in the ordinary course of post within the statutory 14 days, de facto it had not done so.
Accordingly in my judgment the justices were right in their decision and accordingly this appeal should be dismissed.
MELFORD STEVENSON J. I agree.
BRIDGE J. I also agree.
[quote=SS2.]
Postage by recorded delivery, on the other hand, does not create a presumption of service - such a notice is deemed served, even if it is not delivered.
[quote=SS2.]
This is not accurate SS2. The whole concept in Scotland of making RD delivery mandatory is to ensure that there exists material evidence to prove that either the accused or a member of the same household has signed for the NIP. If this is questioned, it then falls to the Crown to prove receipt of delivery by the post office with a signature.
No signature, no proof.
I have won two cases on this point alone. Not as a loophole incidentally, but the NIP in both cases was not served at all on the accused. In one case the postman couldn't be bothered finding the correct address and signed the slip himself and stuck it through the wrong letterbox!!
The SCP then attempted to bully and intimidate the accused some three months later using the police: unacceptable and unlawful behaviour.
Postage by recorded delivery, on the other hand, does not create a presumption of service - such a notice is deemed served, even if it is not delivered.
[quote=SS2.]
This is not accurate SS2. The whole concept in Scotland of making RD delivery mandatory is to ensure that there exists material evidence to prove that either the accused or a member of the same household has signed for the NIP. If this is questioned, it then falls to the Crown to prove receipt of delivery by the post office with a signature.
No signature, no proof.
I have won two cases on this point alone. Not as a loophole incidentally, but the NIP in both cases was not served at all on the accused. In one case the postman couldn't be bothered finding the correct address and signed the slip himself and stuck it through the wrong letterbox!!
The SCP then attempted to bully and intimidate the accused some three months later using the police: unacceptable and unlawful behaviour.
he replyed yesterday
peterguk V6 KWK said:
CPS have adjourned 'til August as prosecution witness (scamera operator or postal clerk who sends NIPs out) is on holiday..
chr15b said:
so what happend then, i presume as we didnt get an update on the 16th that he was found guilty?
Edited by a boardman on Tuesday 22 July 22:34
a boardman said:
he replyed yesterday
"CPS have adjourned 'til August as prosecution witness (scamera operator or postal clerk who sends NIPs out) is on holiday.."
oops missed that post "CPS have adjourned 'til August as prosecution witness (scamera operator or postal clerk who sends NIPs out) is on holiday.."
chr15b said:
so what happend then, i presume as we didnt get an update on the 16th that he was found guilty?
jith said:
SS2. said:
Postage by recorded delivery, on the other hand, does not create a presumption of service - such a notice is deemed served, even if it is not delivered.
This is not accurate SS2.Firstly, there is the relevant legislation (which is supported by Groome v Driscoll, amongst others):
Road Traffic Offenders Act 1988 said:
1. Requirement of warning for certain offences
(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.
And then there was the recent [Scottish] case of PF Dumfries v Alan Cotton. Whilst the incorrect reasoning may have been used, they reached the correct conclusion (as far as the RTOA 1988 is concerned, anyway).(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.
PF Dumfries v Cotton said:
In respect of the third form of service in terms of section (1A)(c) [recorded delivery] (which was adopted in the present case), service is achieved, and the requirement of warning of prosecution satisfied, by the simple expedient of sending out the notice. Once the notice has been sent, the statutory requirement imposed on the Crown to issue warning of prosecution in terms of the sub-section is achieved. No regard is to be had, in our view, as to whether the notice was received. This is perhaps reinforced by the terms of section 1(2) which provides that a notice will be deemed to have been served on the person notwithstanding that the notice was returned as undelivered or was for any other reason not received by him.
SS2. said:
jith said:
SS2. said:
Postage by recorded delivery, on the other hand, does not create a presumption of service - such a notice is deemed served, even if it is not delivered.
This is not accurate SS2.Firstly, there is the relevant legislation (which is supported by Groome v Driscoll, amongst others):
Road Traffic Offenders Act 1988 said:
1. Requirement of warning for certain offences
(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.
And then there was the recent [Scottish] case of PF Dumfries v Alan Cotton. Whilst the incorrect reasoning may have been used, they reached the correct conclusion (as far as the RTOA 1988 is concerned, anyway).(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.
PF Dumfries v Cotton said:
In respect of the third form of service in terms of section (1A)(c) [recorded delivery] (which was adopted in the present case), service is achieved, and the requirement of warning of prosecution satisfied, by the simple expedient of sending out the notice. Once the notice has been sent, the statutory requirement imposed on the Crown to issue warning of prosecution in terms of the sub-section is achieved. No regard is to be had, in our view, as to whether the notice was received. This is perhaps reinforced by the terms of section 1(2) which provides that a notice will be deemed to have been served on the person notwithstanding that the notice was returned as undelivered or was for any other reason not received by him.
However, para 2 doesn't refer to when the NIP will be deemed to be served, just that it will be, even if returned or not received. That still leaves scope to defend the case on the basis it was deemed served outside of the 14 days.
SS2. said:
jith said:
SS2. said:
Postage by recorded delivery, on the other hand, does not create a presumption of service - such a notice is deemed served, even if it is not delivered.
This is not accurate SS2.Firstly, there is the relevant legislation (which is supported by Groome v Driscoll, amongst others):
Road Traffic Offenders Act 1988 said:
1. Requirement of warning for certain offences
(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.
And then there was the recent [Scottish] case of PF Dumfries v Alan Cotton. Whilst the incorrect reasoning may have been used, they reached the correct conclusion (as far as the RTOA 1988 is concerned, anyway).(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.
PF Dumfries v Cotton said:
In respect of the third form of service in terms of section (1A)(c) [recorded delivery] (which was adopted in the present case), service is achieved, and the requirement of warning of prosecution satisfied, by the simple expedient of sending out the notice. Once the notice has been sent, the statutory requirement imposed on the Crown to issue warning of prosecution in terms of the sub-section is achieved. No regard is to be had, in our view, as to whether the notice was received. This is perhaps reinforced by the terms of section 1(2) which provides that a notice will be deemed to have been served on the person notwithstanding that the notice was returned as undelivered or was for any other reason not received by him.
I have read the Stated Case and can only say I am very disappointed in the decision. I have great faith in the Supreme Court in Scotland and have used it several times, always with success, simply because I would not attempt appeal unless I was certain of the solidity of both the legal and moral arguments. Having said that, it has to be realised that it is most unusual in Scotland for the Crown to go to appeal in what is an extrememly trivial matter in terms of a breach of criminal law: the costs alone are prohibitive in the extreme. The assumption therefore can be fairly made that it was a political decision, once again influenced more by the perceived notion that speeding is the ultimate motoring crime and has to be legally bludgeoned at all costs, than the Fiscal using common sense and correct judgement before pursuing such a course; i.e. is it in the public interest to go to these lengths ove a triviality?
In all the years I have attempted defence of RTA matters, the singularly most obstructive body I have dealt with is the Procurator Fiscal's Office. They excel in bloody-minded, prejudicial, utter stupidity, and this case is a perfect example of that.
Take the submission in Note 5 :-
[5] While that reading of the relevant statutory provision is understandable, we are satisfied that it is incorrect. In terms of section 1A, service of the necessary notice in terms of section 1(1)(c)(ii) is achieved by one of three specific methods. Firstly, service may be affected by personal delivery; secondly, by addressing the notice to the recipient and leaving it at his last known address; and thirdly, by sending the notice by registered post, recorded delivery service or first class post addressed to the last known address. It is only in respect of the first two of these methods of service that provision is made for delivery of the notice. In respect of the third form of service in terms of section (1A)(c) (which was adopted in the present case), service is achieved, and the requirement of warning of prosecution satisfied, by the simple expedient of sending out the notice. Once the notice has been sent, the statutory requirement imposed on the Crown to issue warning of prosecution in terms of the sub-section is achieved. No regard is to be had, in our view, as to whether the notice was received. This is perhaps reinforced by the terms of section 1(2) which provides that a notice will be deemed to have been served on the person notwithstanding that the notice was returned as undelivered or was for any other reason not received by him.
What the Crown is actually saying here is that despite the fact that they admit it is proven that the respondent did not receive the NIP and therefore had no knowledge whatever of the impending action, they pursued him not only to prosecution, but also to Appeal when prosecution was unsuccessful. This pursuit was based simply on the desire to win and not to serve justice as, of course, they are obliged to do at all times. It would appear from the narrative that the only live issue in the case is that of failure to cite, so I find it difficult to comprehend just how the Justices submission in Note 8, that the respondent be convicted, can be carried out. Convict him of what? Surely the correct direction should be a re-trial if anything, based on the fact that it would appear the evidence for the actual alleged offence was not heard. This to me is a fatally flawed decision and conveniently sidesteps the whole and most relevant factor of the fourteen day rule; that of reasonable memory.
What we do know about this case is that it would appear the respondent has been established as both the registered keeper and, importantly, the driver at the time of the alleged offence; this is important because initially of course the NIP would be an S172 notice requiring the RK to identify the driver on the day. In the cases I have been involved in I have prevented prosecution by highlighting the fact that the 14 day rule is clearly intended as a reasonable time span to expect a driver or company to discover who was driving the vehicle on a particular occasion, and also to have retained reasonable memory of the event, if indeed it happened. The interpretation of the Appeal Court in this case would imply that it is acceptable to ignore this principle even when it is actually proven that the respondent was not cited at all, never mind within fourteen days!! This is totally unacceptable and takes justice down an extremely slippery slope. In the cases I defended it was months before the NIP was actually served on the accused individuals and I would defend to the death any person's right to have a case dismissed under such clearly ridiculous circumstances.
It is the current "mass produced" method of enforcement that has brought these circumstances about. There is no regard for true justice or proper process, only conviction and money, the modern god. To prosecute an individual it is vital that they are given every opportunity to defend themselves, and the system of citation is the initial stage of this process: how in God's name can you reasonably expect anyone to respond to an accusation when they are unaware that they are being accused? It is sad indeed that the Appeal Court has gone down this road, a road that opens a wound in the side of justice and will only serve to mask the gross incompetence of the various agencies so dependent on the shoddy postal citation system for their "cash flow".
Well done OP – I’m glad someone has the time and inclination to fight this unfair, loaded system. Government and application of law appears to me to be predicated on the assumption that individuals won’t be able to defend themselves against our harsh disproportionate system because the energy and gumption it takes will be too great to tolerate. So most of us just bend over...
GFO875 said:
Can someone clarify a point. Is he saying that he is not guilty of speeding or is he guilty but trying to get off on a technicality?
Neither. He is saying that the authorities have failed to adhere to the due legal processes of which they have a statuory duty to observe. I trust you would agree that observation of proper processes and adherence to the law are the bedrock of our justice system and that this applies not only to the public, but to the CPS and Police equally?
Edited by Andy Zarse on Thursday 24th July 20:13
Andy Zarse said:
GFO875 said:
Can someone clarify a point. Is he saying that he is not guilty of speeding or is he guilty but trying to get off on a technicality?
Neither. He is saying that the authorities have failed to adhere to the due legal processes of which they have a statuory duty to observe. I trust you would agree that observation of proper processes and adherence to the law are the bedrock of our justice system and that this applies not only to the public, but to the CPS and Police equally?
The people/place to decide is at court.
Edited by vonhosen on Thursday 24th July 20:33
vonhosen said:
Andy Zarse said:
GFO875 said:
Can someone clarify a point. Is he saying that he is not guilty of speeding or is he guilty but trying to get off on a technicality?
Neither. He is saying that the authorities have failed to adhere to the due legal processes of which they have a statuory duty to observe. I trust you would agree that observation of proper processes and adherence to the law are the bedrock of our justice system and that this applies not only to the public, but to the CPS and Police equally?
The people/place to decide is at court.
Edited by vonhosen on Thursday 24th July 20:33
And that is where i have to admit i have doubts...
I would like to think the mags. will listen to my argument and decide based on an unbiased opinion, without any indirect pressure of upholding the CPS's claim, concern of the consequences, or any other factor that is not to do with the base facts, arguments etc.
I would like to think the mags. will listen to my argument and decide based on an unbiased opinion, without any indirect pressure of upholding the CPS's claim, concern of the consequences, or any other factor that is not to do with the base facts, arguments etc.
peterguk V6 KWK said:
And that is where i have to admit i have doubts...
I would like to think the mags. will listen to my argument and decide based on an unbiased opinion, without any indirect pressure of upholding the CPS's claim, concern of the consequences, or any other factor that is not to do with the base facts, arguments etc.
If they've done their homework a great deal of argument will be based on the previous rulings of higher courts.I would like to think the mags. will listen to my argument and decide based on an unbiased opinion, without any indirect pressure of upholding the CPS's claim, concern of the consequences, or any other factor that is not to do with the base facts, arguments etc.
If it isn't covered by higher courts previous rulings then it could potentially go there (should the outcome be so objectionable to either party).
Edited by vonhosen on Thursday 24th July 21:08
vonhosen said:
peterguk V6 KWK said:
And that is where i have to admit i have doubts...
I would like to think the mags. will listen to my argument and decide based on an unbiased opinion, without any indirect pressure of upholding the CPS's claim, concern of the consequences, or any other factor that is not to do with the base facts, arguments etc.
If they've done their homework a great deal of argument will be based on the previous rulings of higher courts.I would like to think the mags. will listen to my argument and decide based on an unbiased opinion, without any indirect pressure of upholding the CPS's claim, concern of the consequences, or any other factor that is not to do with the base facts, arguments etc.
BTW, how important are Scottish rulings in English Courts??
Edited by peterguk V6 KWK on Thursday 24th July 21:13
peterguk V6 KWK said:
vonhosen said:
peterguk V6 KWK said:
And that is where i have to admit i have doubts...
I would like to think the mags. will listen to my argument and decide based on an unbiased opinion, without any indirect pressure of upholding the CPS's claim, concern of the consequences, or any other factor that is not to do with the base facts, arguments etc.
If they've done their homework a great deal of argument will be based on the previous rulings of higher courts.I would like to think the mags. will listen to my argument and decide based on an unbiased opinion, without any indirect pressure of upholding the CPS's claim, concern of the consequences, or any other factor that is not to do with the base facts, arguments etc.
BTW, how important are Scottish rulings in English Courts??
Edited by peterguk V6 KWK on Thursday 24th July 21:13
To my mind the legislation doesn't appear to indicate service equals receipt.
The argument that if it isn't received in 14 days is unfair for an accused's defense doesn't hold much water either, because quite legitimately the registered keeper might receive it within 14 days whilst the driver may not for months later, which conversely would be deemed to be fine & not damaging to fair process. So why on earth should it be so considered if it was sent to arrive within 14 days (as required) but didn't arrive until later ?
If it were considered so critical to fair due process, it would have to be with the accused driver within 14 days whatever & that is completely impractical.
Paragraph 2 is clear that non-receipt cannot be used as a defence to non-service in the case of rec del and reg post.
It just as clearly omits first class post from the list. I cannot see how it doesn't follow from this omission that non-receipt may be a defence in the case of First Class Post.
Para 3 makes it clear that the NIP is deemed served and within 14 days until the contrary is proven.
The decision of the HCJ in Scotland refers to a case in which the NIP was sent by recorded delivery.
I don't see how this case helps us when First Class Post is used. The legislation clearly distinguishes between the two as regards the issue of non-receipt.
Note para 6 from the judgement
(We note that the deeming provision in section 1(2) does not include the situation where the notice is served by first class post)
It just as clearly omits first class post from the list. I cannot see how it doesn't follow from this omission that non-receipt may be a defence in the case of First Class Post.
Para 3 makes it clear that the NIP is deemed served and within 14 days until the contrary is proven.
The decision of the HCJ in Scotland refers to a case in which the NIP was sent by recorded delivery.
I don't see how this case helps us when First Class Post is used. The legislation clearly distinguishes between the two as regards the issue of non-receipt.
Note para 6 from the judgement
(We note that the deeming provision in section 1(2) does not include the situation where the notice is served by first class post)
Edited by Zeeky on Thursday 24th July 23:11
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