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fluffnik

19,664 posts

115 months

[news] 
Sunday 20th May 2012 quote quote all
stemll said:
fluffnik said:
Tell me where I'm wrong and why.

smile
Because a s172 is not an admission of guilt in any way, shape or form.
Yes it is if it identifies you as the driver, no other evidence identifying the driver is presented.

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

The SCPs are racketeers, we need to recognise them for what they are and treat them accordingly; they should have NO place in a free society.

fluffnik

19,664 posts

115 months

[news] 
Sunday 20th May 2012 quote quote all
WhereamI said:
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.
That's because the SCPs are racketeers, not creditable parts of a Justice System.

We should not tolerate them.

WhereamI

6,887 posts

105 months

[news] 
Sunday 20th May 2012 quote quote all
The problem is that sometimes you do have to do something to stop people speeding. I used to live on a road where there were an inordinate number of people crashing into things largely because they were driving too fast. In an eighteen month period there were six major accidents including four fatalities and it really isn't that pleasant hearing it happen and running out to try and help only to find, in one case, a car had run the length of the fence before hitting the wall and the occupants were impaled on bits of fencing. Believe me it is not a sight you would forget.

Signage and road markings were tried but the thing that worked was putting up a speed camera. From that time until we moved there were no more accidents.

So I believe that they can have their uses and bearing in mind that they have signs around them and are painted yellow I struggle to understand how people fail to notice them.

As far as the process is concerned, it's not perfect but how else do you do it? If someone can get off by simply claiming they didn't get the NIP in time the system isn't working, similarly if sent by registered post all you would have to do is if you think you might be getting one don't answer the door to the postman and wait awhile before going to collect it from the sorting office.

10 Pence Short

32,880 posts

105 months

[news] 
Sunday 20th May 2012 quote quote all
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

13,983 posts

112 months

[news] 
Sunday 20th May 2012 quote quote all
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


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Zeeky

2,519 posts

100 months

[news] 
Sunday 20th May 2012 quote quote all
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

19,664 posts

115 months

[news] 
Sunday 20th May 2012 quote quote all
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

19,664 posts

115 months

[news] 
Sunday 20th May 2012 quote quote all
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

6,887 posts

105 months

[news] 
Sunday 20th May 2012 quote quote all
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

6,887 posts

105 months

[news] 
Sunday 20th May 2012 quote quote all
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

32,880 posts

105 months

[news] 
Sunday 20th May 2012 quote quote all
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

2,519 posts

100 months

[news] 
Sunday 20th May 2012 quote quote all
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

6,887 posts

105 months

[news] 
Sunday 20th May 2012 quote quote all
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

13,983 posts

112 months

[news] 
Sunday 20th May 2012 quote quote all
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

26,934 posts

133 months

[news] 
Sunday 20th May 2012 quote quote all
I would think your only hope in normal circumstances would be the postman remembering the date he delivered the letter containing the NIP.

blueg33

13,983 posts

112 months

[news] 
Sunday 20th May 2012 quote quote all
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

26,934 posts

133 months

[news] 
Sunday 20th May 2012 quote quote all
blueg33 said:
Post mark on envelope too
Pre-paid (or whatever it's called) post isn't postmarked as a matter of routine.

Zeeky

2,519 posts

100 months

[news] 
Sunday 20th May 2012 quote quote all
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

6,887 posts

105 months

[news] 
Sunday 20th May 2012 quote quote all
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

2,519 posts

100 months

[news] 
Sunday 20th May 2012 quote quote all
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.






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