NIP after 16 Days - Pleading Not Guilty - Update

[Andy Zarse]

vonhosen said:

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.

Hmmm, like i said - doubts. jith's last couple of paragraphs above raise several serious concerns, both morally and legally.... No one to question their decision... And safe from unwanted consequences...

BTW, how important are Scottish rulings in English Courts??

Edited by peterguk V6 KWK on Thursday 24th July 21:13

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 ?

Why, you ask? Well, because the legislation SPECIFICALLY says so. I realise the arrogance sometimes inherent within the CPS, judiciary and dare I suggest within the Police, occasionally means they think they know better than our elected legislators. However, the wording in the Act is really the wording is very clear. It says the NIP MUST be served within 14 days and it offers the prosepect of the accused proving the contrary in Court.

[vonhosen]

Zeeky said:

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)

1A(c) still describes 'service' (for first class post) as the act of merely sending to arrive within the time frame. It doesn't differentiate 'service' from the other forms of sending, it groups them together, the acting of sending to arrive being service. Nowhere does it say 'service' is receipt or time of it.


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.

Section 7 of the Interpretation Act 1978 states:
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.

Edited by vonhosen on Thursday 24th July 23:37

[Zeeky]

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?

[Andy Zarse]

vonhosen said:

Zeeky said:

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)

1A(c) still describes 'service' (for first class post) as the act of merely sending to arrive within the time frame. It doesn't differentiate 'service' from the other forms of sending, it groups them together, the acting of sending to arrive being service. Nowhere does it say 'service' is receipt or time of it.


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.

Section 7 of the Interpretation Act 1978 states:
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.

Edited by vonhosen on Thursday 24th July 23:37

Irrelevant.

[TPAC]

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.

[vonhosen]

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.

1st class post can be just put through the letterbox, recorded delivery can't.

[vonhosen]

Andy Zarse said:

vonhosen said:

Zeeky said:

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)

1A(c) still describes 'service' (for first class post) as the act of merely sending to arrive within the time frame. It doesn't differentiate 'service' from the other forms of sending, it groups them together, the acting of sending to arrive being service. Nowhere does it say 'service' is receipt or time of it.


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.

Section 7 of the Interpretation Act 1978 states:
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.

Irrelevant.

That's for the court to decide, not you.

[vonhosen]

Andy Zarse said:

vonhosen said:

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.

Hmmm, like i said - doubts. jith's last couple of paragraphs above raise several serious concerns, both morally and legally.... No one to question their decision... And safe from unwanted consequences...

BTW, how important are Scottish rulings in English Courts??

Edited by peterguk V6 KWK on Thursday 24th July 21:13

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 ?

Why, you ask? Well, because the legislation SPECIFICALLY says so. I realise the arrogance sometimes inherent within the CPS, judiciary and dare I suggest within the Police, occasionally means they think they know better than our elected legislators. However, the wording in the Act is really the wording is very clear. It says the NIP MUST be served within 14 days and it offers the prosepect of the accused proving the contrary in Court.

But the Act does not SPECIFICALLY say what you say.
Show me in the Act where it SPECIFICALLY says service = receipt.
It does say service is sending.

Edited by vonhosen on Friday 25th July 00:12

[Andy Zarse]

vonhosen said:

Andy Zarse said:

vonhosen said:

Zeeky said:

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)

1A(c) still describes 'service' (for first class post) as the act of merely sending to arrive within the time frame. It doesn't differentiate 'service' from the other forms of sending, it groups them together, the acting of sending to arrive being service. Nowhere does it say 'service' is receipt or time of it.


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.

Section 7 of the Interpretation Act 1978 states:
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.

Irrelevant.

That's for the court to decide, not you.

Or you, though it does not stop you commenting and proffering your opinion, which is all I'm doing too.

[vonhosen]

Andy Zarse said:

vonhosen said:

Andy Zarse said:

vonhosen said:

Zeeky said:

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)

1A(c) still describes 'service' (for first class post) as the act of merely sending to arrive within the time frame. It doesn't differentiate 'service' from the other forms of sending, it groups them together, the acting of sending to arrive being service. Nowhere does it say 'service' is receipt or time of it.


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.

Section 7 of the Interpretation Act 1978 states:
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.

Irrelevant.

That's for the court to decide, not you.

Or you, though it does not stop you commenting and proffering your opinion, which is all I'm doing too.

I'm quite happy to let the court interpret as they see fit, that's what they are there for.

I will however point out when people say something is SPECIFICALLY in the legislation, that it is not (where it isn't).

[Zeeky]

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).

Edited by Zeeky on Friday 25th July 00:42

[vonhosen]

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.

[peterguk V6 KWK]

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?

[TPAC]

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

[Zeeky]

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" should apply equally to rec and reg del and First Class Post u.nless the legislation intends for First Class Post to be treated differently in terms of the scope for a defence

Edited by Zeeky on Friday 25th July 01:21

[peterguk V6 KWK]

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..

[Zeeky]

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?

[Zeeky]

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.

Edited by Zeeky on Friday 25th July 01:06

[Andy Zarse]

Let us stick to the subject in hand.

RTOA 1988

(1) Subject to section 2 of this Act, where a person is prosecuted for an offence to which this section applies, he is not to be convicted unless—
(a) he was warned at the time the offence was committed that the question of prosecuting him for some one or other of the offences to which this section applies would be taken into consideration, or
(b) within fourteen days of the commission of the offence a summons (or, in Scotland, a complaint) for the offence was served on him, or
(c) within fourteen days of the commission of the offence 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—
(i) in the case of an offence under section 28 or 29 of the [1988 c. 52.] Road Traffic Act 1988 (cycling offences), served on him,
(ii) in the case of any other offence, served on him or on the person, if any, registered as the keeper of the vehicle at the time of the commission of the offence.
(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.


Subsection 1 clearly states that the Notice of Intended Prosecution shall be served on the Registered Keeper within 14 days of the date of offence. (3) states that service shall be assumed unless and until the contrary is proved. The Act itself insists upon Reg/Rec post being used. That it is not is hardly the fault of the accused.

Obviously I accept the problems inherent in proving a negative, however, it is possible. I know this for I've done it myself; my case was dropped. The proof, I suppose, was in the (Christmas) pudding!

[vonhosen]

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?

Even if a Magistrate came to that judgment it doesn't automatically follow that it is right. The only way that can truly be tested is once it has gone to the highest courts in the land (over that specific issue) & they decide. Then if government decide that their ruling is not in line with the intention within the legislation must they amend the legislation to make their intention clearer.