Mum got an NIP, 40 in a 30 but the letter is LATE

[10 Pence Short]

fluffnik said:

Even the cowardly majority at the ECHR admitted that S172 encroached on basic rights rendering it unusable in serious cases.

In O'HALLORAN AND FRANCIS v. THE UNITED KINGDOM Section 172 was tested against Article 6, both with regards to the evidence obtained under 172 being used to prosecute and prosecution under 172 itself for failure to provide.

It was held by a majority of 15 to 2 that 172 did not violate article 6(1) and unanimously that it didn't violate 6(2).

Which case were you thinking of, Fluff?

[blueg33]

10 Pence Short said:

In O'HALLORAN AND FRANCIS v. THE UNITED KINGDOM Section 172 was tested against Article 6, both with regards to the evidence obtained under 172 being used to prosecute and prosecution under 172 itself for failure to provide.

It was held by a majority of 15 to 2 that 172 did not violate article 6(1) and unanimously that it didn't violate 6(2).

Which case were you thinking of, Fluff?

It always amazes me that they managed to reach that decision.

Prior to that even the scammas gave in when you gave a covering letter providingthe s172 info but didn't fill in the form. Result = no prosecution

[Zeeky]

WhereamI said:

Zeeky said:

How does the OP's mother know that the NIP was delivered late? She must have knowledge of it being delivered late. That knowledge can be used in evidence.

Oh look, let's join the real world here. In practice getting off a speeding fine by claiming that the NIP was late doesn't work except in exceptional circumstances. OK, if there was a postal strike or something like that you stand a chance, but the court is not going to accept that the NIP was late simply because you say so.

You are confusing the words 'claiming' and 'say so' with evidence. If the defendant gives evidence explaining how they know that the NIP arrived late and the court has no reason to believe that person is lying why would that evidence not work?

In the real world it depends on whether or not the court is convinced of the credibility and reliability of the evidence. People can be convicted of crimes on the 'say so' or 'claim' of a witness. The standard of proof for the defendant to prove the NIP was not received is only on the balance of probabilities.

[fluffnik]

10 Pence Short said:

fluffnik said:

Even the cowardly majority at the ECHR admitted that S172 encroached on basic rights rendering it unusable in serious cases.

In O'HALLORAN AND FRANCIS v. THE UNITED KINGDOM Section 172 was tested against Article 6, both with regards to the evidence obtained under 172 being used to prosecute and prosecution under 172 itself for failure to provide.

It was held by a majority of 15 to 2 that 172 did not violate article 6(1) and unanimously that it didn't violate 6(2).

Which case were you thinking of, Fluff?

I can't recall, it may even have been part of the O'HALLORAN AND FRANCIS v. THE UNITED KINGDOM judgement.

To paraphrase:

The judgement held that it was a trivial infringement for trivial administrative reasons and so allowable.

I would not agree.

I believe the non-use of S172 in serious cases pre-dates the judgement.

[fluffnik]

WhereamI said:

The problem is that sometimes you do have to do something to stop people speeding.

No, you need to help people avoid driving inappropriately fast...

Engineering solutions are best.

[WhereamI]

Zeeky said:

You are confusing the words 'claiming' and 'say so' with evidence. If the defendant gives evidence explaining how they know that the NIP arrived late and the court has no reason to believe that person is lying why would that evidence not work?

I'm not confusing anything, you are the one tied up in semantics

Zeeky said:

In the real world it depends on whether or not the court is convinced of the credibility and reliability of the evidence. People can be convicted of crimes on the 'say so' or 'claim' of a witness. The standard of proof for the defendant to prove the NIP was not received is only on the balance of probabilities.

OK, look at it another way, has there ever been an example where a NIP dated comfortably within the 14 days has been accepted to have been outside the time limit without there being special circumstances? If in practice it was possible to stand up and convince the court that it didn't arrive in time where are the cases? Can you quote one? The only one anyone ever quotes is Gidden and that did have special circumstances, a postal strike.

[WhereamI]

fluffnik said:

WhereamI said:

The problem is that sometimes you do have to do something to stop people speeding.

No, you need to help people avoid driving inappropriately fast...

Engineering solutions are best.

It depends on the circumstances, in this case the highways people at the time were reluctant to put a camera in, they favoured other routes but went for a camera in the end because it was a piece of road that was hard to change in any other way. But putting a camera in worked, people started to stick to the speed limit and the accidents stopped.

[10 Pence Short]

fluffnik said:

10 Pence Short said:

fluffnik said:

Even the cowardly majority at the ECHR admitted that S172 encroached on basic rights rendering it unusable in serious cases.

In O'HALLORAN AND FRANCIS v. THE UNITED KINGDOM Section 172 was tested against Article 6, both with regards to the evidence obtained under 172 being used to prosecute and prosecution under 172 itself for failure to provide.

It was held by a majority of 15 to 2 that 172 did not violate article 6(1) and unanimously that it didn't violate 6(2).

Which case were you thinking of, Fluff?

I can't recall, it may even have been part of the O'HALLORAN AND FRANCIS v. THE UNITED KINGDOM judgement.

To paraphrase:

The judgement held that it was a trivial infringement for trivial administrative reasons and so allowable.

I would not agree.

I believe the non-use of S172 in serious cases pre-dates the judgement.

To which serious cases would you be referring, with regards the 172?

Bear in mind they agreed that the 172 doesn't constitute an admission of guilt. In which case the seriousness of the road traffic offence triggering the 172 is irrelevant.

They also found that in itself, the penalty for refusing to comply with the 172 was proportionate and low enough with regards the objective of protecting the rights of the population, that it in itself wasn't an abuse, either.

I can't see anything in that judgement that supports what you said, to be honest.

[Zeeky]

WhereamI said:

Zeeky said:

You are confusing the words 'claiming' and 'say so' with evidence. If the defendant gives evidence explaining how they know that the NIP arrived late and the court has no reason to believe that person is lying why would that evidence not work?

I'm not confusing anything, you are the one tied up in semantics

If you ever have to give evidence in court you will understand the difference between a 'claim' a 'say so' and evidence.

Zeeky said:

In the real world it depends on whether or not the court is convinced of the credibility and reliability of the evidence. People can be convicted of crimes on the 'say so' or 'claim' of a witness. The standard of proof for the defendant to prove the NIP was not received is only on the balance of probabilities.

OK, look at it another way, has there ever been an example where a NIP dated comfortably within the 14 days has been accepted to have been outside the time limit without there being special circumstances? If in practice it was possible to stand up and convince the court that it didn't arrive in time where are the cases? Can you quote one? The only one anyone ever quotes is Gidden and that did have special circumstances, a postal strike.

If cases aren't reported it is not possible to reference them. Gidden is referenced because the prosecution appealed it on a different point. I cannot see a basis on which the CPS could appeal the decision of a court not to convict because they were convinced, on balance, that the witness evidence of the accused demonstrated that the NIP was not delivered.

I may be able to give you an example, one way or the other later this year.

[WhereamI]

Zeeky said:

WhereamI said:

Zeeky said:

You are confusing the words 'claiming' and 'say so' with evidence. If the defendant gives evidence explaining how they know that the NIP arrived late and the court has no reason to believe that person is lying why would that evidence not work?

I'm not confusing anything, you are the one tied up in semantics

If you ever have to give evidence in court you will understand the difference between a 'claim' a 'say so' and evidence.

I have given evidence in court on more than one occaision

Zeeky said:

WhereamI said:

Zeeky said:

In the real world it depends on whether or not the court is convinced of the credibility and reliability of the evidence. People can be convicted of crimes on the 'say so' or 'claim' of a witness. The standard of proof for the defendant to prove the NIP was not received is only on the balance of probabilities.

OK, look at it another way, has there ever been an example where a NIP dated comfortably within the 14 days has been accepted to have been outside the time limit without there being special circumstances? If in practice it was possible to stand up and convince the court that it didn't arrive in time where are the cases? Can you quote one? The only one anyone ever quotes is Gidden and that did have special circumstances, a postal strike.

If cases aren't reported it is not possible to reference them. Gidden is referenced because the prosecution appealed it on a different point. I cannot see a basis on which the CPS could appeal the decision of a court not to convict because they were convinced, on balance, that the witness evidence of the accused demonstrated that the NIP was not delivered.

I may be able to give you an example, one way or the other later this year.

Actually Gidden was convicted in the Magistrates court, he appealed to the Crown Court and lost and appealed to the High Court where he won.

Cases aren't reported because they hardly ever happen, Magistrates see cases every day where people claim that the NIP was late and there are lots of reasons why it can be late without it being invalid (new car, recent change of owner etc.). So long as the date on the NIP is within, say, 12 days of the offence (not counting the day of the offence) then the magistrate really isn't going to be interested in any claims that it took longer. OK, a sworn statement from someone totally independent might work, but they hear this stuff every day, simply claiming that you know it was Thursday because it was the day the cat died, or whatever, doesn't work.

[blueg33]

I would be interested to see a list of cases post Gidden where the defendant claimed the NIP was late and the magistrates found against the defendant, especially where there was a sworn statement and supporting evidence

[Deva Link]

I would think your only hope in normal circumstances would be the postman remembering the date he delivered the letter containing the NIP.

[blueg33]

Deva Link said:

I would think your only hope in normal circumstances would be the postman remembering the date he delivered the letter containing the NIP.

Post mark on envelope too

[Deva Link]

blueg33 said:

Post mark on envelope too

Pre-paid (or whatever it's called) post isn't postmarked as a matter of routine.

[Zeeky]

WhereamI said:

...I have given evidence in court on more than one occaision.

Then you should know better than to refer to the defendant's witness evidence as a 'claim' or 'say so'. It is witness evidence and the court is bound to treat it as such.

WhereamI said:

Actually Gidden was convicted in the Magistrates court, he appealed to the Crown Court and lost and appealed to the High Court where he won.

Neither of the appeals were based on whether or not the NIP had been delivered late. The CPS had conceded it had been. Gidden tells us nothing about what evidence the court can or cannot consider in order to decide whether or not the NIP was delivered and if so on time. You are speculating on this point.

WhereamI said:

Cases aren't reported because they hardly ever happen,

By reported I mean in the law reports. Magistrates courts cases are rarely reported.

WhereamI said:

Magistrates see cases every day where people claim that the NIP was late and there are lots of reasons why it can be late without it being invalid (new car, recent change of owner etc.). So long as the date on the NIP is within, say, 12 days of the offence (not counting the day of the offence) then the magistrate really isn't going to be interested in any claims that it took longer... simply claiming that you know it was Thursday because it was the day the cat died, or whatever, doesn't work.

What is the basis for this assertion? The Gidden case implies unequivocally that the court must be interested in the witness evidence of the defendant. You are speculating again.

If a court rejected the evidence of the defendant as inadmissible, then that would be an error of law.

Magistrates convict people on the basis of one witness's oral evidence, they also acquit people on that basis.

[WhereamI]

Zeeky, I don't know who you are or what your practical experience of the legal system is, but do you really think that it is easy to get a speeding charge dismissed on the 14 day rule?

Because if it was thousands would be doing it and in no time at all the law would have been changed. If a signed statement was all it took, or if getting your granny to say it arrived a couple of days late would get you off a speeding fine loads of people would be doing it. But they aren't, there is no legislation pending to change this, so the clue is there, people aren't getting away with it on this basis.

You can pontificate about what should happen all you like, but walking into a magistrates court with a bit of paper where you say that the NIP arrived late isn't going to work, it takes a lot more than that.

[Zeeky]

I thought you were the one pontificating. Trying to convince a court a document did not arrive or arrived late is not as simple as making a 'claim' or 'say so' of the same or walking into court (how else does one gain entry?) with a 'bit of paper'.

It is however, possible to succeed, if the defendant is credible and has a reliable basis for his statement.

I know because I have succeeded in doing this. I have not done it with a NIP but may be doing it soon. I will let you know how it goes.

The fact that the law hasn't been changed is most likely because very few NIPS do arrive late or do not arrive at all.

The implication of what you say is that people lie. They do, but lying in court is risky business and most people do not want to take that risk if they don't have to. Most people don't want to go to court anyway. They just pay up and take the points. A minority will get someone else to take the points.

Furthermore it is not a defence that one can use regularly with credibility. All of these factors mean it is probably not worth the effort of changing the law. It certainly doesn't mean that a magistrates court will disregard the defendant's witness evidence just because people are known to lie.

[stemll]

fluffnik said:

Yes it is if it identifies you as the driver, no other evidence identifying the driver is presented.

No it isn't, not even remotely. The proof of the offence of speeding is completely separate to the identification of a driver.

Zeeky said:

The Gidden case implies unequivocally

Is that possible? Surely by definition an implication has to be equivocal?

[KevinA3DSG32]

stemll said:

fluffnik said:

Yes it is if it identifies you as the driver, no other evidence identifying the driver is presented.

No it isn't, not even remotely. The proof of the offence of speeding is completely separate to the identification of a driver.

You are missing the point here. Fluffnik is talking about evidence of who the driver is, not whether or not the speeding is proved.

The speeding is proved by the camera, it does not prove who the driver is. By having to complete a S172 naming yourself as the driver you have to provide proof of your identity as the driver. Without this they cannot proceed to the speeding charge. By filling in the S172 you are 'admitting' to being the driver at the time the speeding offence occured and are therefore guilty of the charge.

By extension would you be happy if you received a S172 because your car (and no other) was seen parked near where an offence such as burglary took place. No other evidence of identity was required? You were then charged with the burglary?

[Deva Link]

WhereamI said:

Zeeky, I don't know who you are or what your practical experience of the legal system is, but do you really think that it is easy to get a speeding charge dismissed on the 14 day rule?

Because if it was thousands would be doing it and in no time at all the law would have been changed. If a signed statement was all it took, or if getting your granny to say it arrived a couple of days late would get you off a speeding fine loads of people would be doing it. But they aren't, there is no legislation pending to change this, so the clue is there, people aren't getting away with it on this basis.

You can pontificate about what should happen all you like, but walking into a magistrates court with a bit of paper where you say that the NIP arrived late isn't going to work, it takes a lot more than that.

There's a vaguely similar case being referenced in another thread which shows how annoyed Judges (this was at appeal after conviction) can get if they think you're taking the piss:

agtlaw said:

correct.

the Dafoe case went to a crown court appeal in November 2009.

"The footballer, represented by celebrity lawyer Nick Freeman, appealed and argued there was no evidence to prove he was driving; prosecutors had not proved paperwork was issued by a person authorised by the chief constable of Essex; the court could not be sure Defoe had received speeding notices and the court could not be sure Defoe had not responded to the notices.

Judge Goldstaub said: "This appeal is a frivolous and vexatious piece of criminal litigation by the appellant and should never have been initiated. It is based on technical and legal points empty of substantial merit and bad in themselves."

The judge said paperwork had been completed by agents authorised by the chief constable and he said it was "inconceivable or at best highly fanciful" to assume that post addressed to Defoe had twice gone astray. He also said he was equally sure Defoe had not responded to the notices.

Judge Goldstaub, who sat with two magistrates to hear the appeal, said he was also sure Defoe had been the driver. He said: "We think he chose to give the prosecution a run for their money regardless, simply because he could afford to play the litigation game. We regret this appeal, which has taken up a day's court time when people waiting in custody for trials on serious charges should have been brought." http://www.autotrader.co.uk/EDITORIAL/CARS/news/AU...