Quick law check

[DeMolay]

Flat in Fifth said:

The argument on here imho shouldn't be about whether something has been served, because the law as written clearly says it is deemed to have been served.

But there is only a presumption that it has been served. Don't forget the statement "unless and until the contrary is proved". If you stand up in court and swear, under oath, that you didn't get it then the prosecution case is, surely, doomed?

To say it again, the police have the option of using recorded delivery to "ensure service" (ACPO's words, not mine). They choose not to do it. As far as I am aware (read it on Pepipoo), a force in Scotland is the only one to send them out recorded delivery as a matter of course.

[Flat in Fifth]

DeMolay said:

Don't forget the statement "unless and until the contrary is proved". If you stand up in court and swear, under oath, that you didn't get it then the prosecution case is, surely, doomed?

How does one prove a negative? Not sure you can.

I know it doesn't quite happen like this but ...

A. Ticket office stand up and swear under oath that they sent it, written records to support statement.
B. You stand up in court and swear under oath that you didn't get it. No written record to support. As in who keeps a log of post received, hence no record. But trying to prove a negative.

Should be equal weight in the mind of the court.

But then on top of all this there is the unevenhandedness (if that is a word) of the law which presumes / deems (whatever) that it has been delivered / served because of statement from A. Therefore extra weight on side of prosecution.

One would hope that the beaks would say this is not beyond reasonable doubt and acquit but do they in all cases? I don't know tbh, guess it depends upon the strength of the case for and against and how believable the defendant is.

Nevertheless I agree with you DeM the prosecution case ought to collapse at this point.

Whatever it is, one thing it isn't, is justice.

Going round in circles with this imho.

>> Edited by Flat in Fifth on Monday 17th April 17:30

[DeMolay]

Flat in Fifth said:

But then on top of all this there is the unevenhandedness (if that is a word) of the law which presumes / deems (whatever) that it has been delivered / served because of statement from A. Therefore extra weight on side of prosecution.

With the greatest of respect, I still think you're missing the point slightly.

How does the prosecution proved that it was served (served as in physically delivered to the defendant)? They can't. They can only prove postage. Postage and service are not one in the same thing. They never were.

Also, in Sanders v Scott it was held that in order to show a NIP wasn't received:
"The proper way of (the accused) doing that is for the driver to give evidence that no notice was served on him and to call the registered owner in turn to say that he had not been served."

So the judge was saying that sworn testimony is sufficient to rebut the presumption that exists.

[Observer2]

Flat in Fifth said:

How does one prove a negative? Not sure you can. I know it doesn't quite happen like this but ... A. Ticket office stand up and swear under oath that they sent it, written records to support statement. B. You stand up in court and swear under oath that you didn't get it. No written record to support. As in who keeps a log of post received, hence no record. But trying to prove a negative. Should be equal weight in the mind of the court. But then on top of all this there is the unevenhandedness (if that is a word) of the law which presumes / deems (whatever) that it has been delivered / served because of statement from A. Therefore extra weight on side of prosecution. One would hope that the beaks would say this is not beyond reasonable doubt and acquit but do they in all cases? I don't know tbh, guess it depends upon the strength of the case for and against and how believable the defendant is. Nevertheless I agree with you DeM the prosecution case ought to collapse at this point. Whatever it is, one thing it isn't, is justice.

I disagree that the evidence of prosecution and defence can or should have equal weight. The prosecution can give evidence that the NIP was sent but has no direct knowledge of whether or not it was delivered. So, if a defendant can give sworn testimony that it was not delivered, that evidence is uncontested (and uncontestable). Absent good reason to believe the defendant is perjuring himself, the court MUST accept the defendant's testimony as proof of non-delivery. That's the way it should work and the way I believe it would work - provided the defendant is credible.

[catso]

g_attrill said:

So for 1st class post it would need to be sent on the 13th day.

I've had items sent by 1st class post not arrive within 2 weeks, in fact I've had items sent by first class post never arrive.......

[Flat in Fifth]

DeMolay said:

I still think you're missing the point slightly.

I don't think so.

The point I'm making is in your very next paragraph.

DeMolay said:

How does the prosecution proved that it was served (served as in physically delivered to the defendant)? They can't. They can only prove postage. Postage and service are not one in the same thing. They never were.

Correct!

Therefore the way the law is written to put that presumption / interpretation in place is an utter disgrace in my opinion.

DeMolay said:

Also, in Sanders v Scott it was held that in order to show a NIP wasn't received: "The proper way of (the accused) doing that is for the driver to give evidence that no notice was served on him and to call the registered owner in turn to say that he had not been served." So the judge was saying that sworn testimony is sufficient to rebut the presumption that exists.

Indeed; that is of course assuming that we don't have magistrates who brief themselves for the prosecution.

As said before going round in tedious circles with this.

So are you suggesting that a cast iron strategy against a NoIP would be to ignore all correspondence, and respond to a S172 charge on grounds that info never received? (Yes I know it's more complicated than that in practice.)

[Observer2]

Flat in Fifth said:

So are you suggesting that a cast iron strategy against a NoIP would be to ignore all correspondence, and respond to a S172 charge on grounds that info never received? (Yes I know it's more complicated than that in practice.)

Excuse me jumping in but yes, exactly so. However, to be successful, the defendant has to be willing to undertake the offences of perverting the course of justice (definitely) and perjury (possibly). Even though the offences are probably unprovable, these are serious matters for anyone with half a conscience so I would not expect a flood of false claims (perhaps my faith is misplaced, I don't know).

BTW, there is no question of a s.172 charge. Where no response to a first NIP is received, a ticket office is almost certain to send a reminder. Assuming this is received, the s.172 request is valid even if the NIP is out of time. So a defendant who did not receive the original NIP but receives the reminder should complete the second s.172 request and return it with a letter asserting non-receipt of the original. Subsequent fixed penalty is then ignored and the case will proceed to court in due course where the defendant will plead not guilty on the grounds that a NIP was not served within 14 days.

The real point of making this clear is not to provide a ticket avoidance strategy but to make clear that non-receipt of the NIP is a rock-solid defence (if managed properly) for anyone who genuinely did not receive the original NIP (subject to certain limitations like recent change of address, purchase of vehicle etc). Probably the vast majority of defendants in that position either would not be aware that they have a defence or, if they raise the issue with the ticket office (and somteimes, shockingly, even a solicitor) will be told that there is a presumption of service and all the prosecution needs to do is prove the NIP was sent. That is absolutely not the case. As stated, the defence is pretty much incontestable, provided the defendant can make a decent fist of giving evidence.

[DeMolay]

Thank you for answering that, Observer2.

As stated, if a more dishonest member of society was intent on avoiding a speeding charge he would claim in court that he didn't receive the initial NIP. If he were a believable witness, no charge should succeed.

This may seem incredible (and you may be equally amazed that more people don't do this), but it's partly of the government's own doing. As I've stated, the law was changed in 1994 to allow service by first class mail. The police must, therefore, accept that a proportion of people will not receive NOIPs.

The loss of income to them from people contesting this is small beer compared to the thousands they will save in postage costs. If it were a business (coughs), it makes good economic sense. Of course, the camera partnerships aren't concerned with money, it's all about safety don't you know....