NIP after 16 Days - Pleading Not Guilty - Update

[peterguk V6 KWK]

OK, for those that don't know, i received an NIP last October for an alleged 84 in 70.

The NIP arrived on day 16, and my postman is willing to stand up in Court and state that he not only handed me the envelope, but saw me open it on day 16, delayed to national postal strike. No postmark on envelope.

So i completed the S172 and sent a letter that the NIP was time expired and that they could have it back.

I received a reply from SCP stating that the law says they have to post the NIP within 14 days, and that they had done so.

I replied, respectfully corrrecting them that the law actually says it must be served on RK within 14 days, and that it was not. And that i had a credible witness.

Anyway, pre-trial hearing today.

CPS solictor says they sent within 14 days, and that i am obviously attempting to put off the inevitable i.e. successful conviction.

I state NIP received outside 14 days, therfore invalid.

Mags ask CPS solictor for relevant law. Solictor says "only had case 5 mins and not familiar with that actual piece of legislation"

I inform mags of the RTOA, actual wording, and after quick chat between themselves, they agree that on the face of it i have a credible defence.

CPS objects - objections ignored, trial set for July 16th.

In conclusion, mags said it will be the job of the trial mags to decide on the "application of the law in real life terms", and that i should ensure my witness turns up. Duty solicitor sitting in back of Court caught me in the corridor and wished me luck!

So, roll on trial.

Edited by peterguk V6 KWK on Tuesday 13th May 21:49

[GFO875]

peterguk V6 KWK said:

OK,
I replied, respectfully corrrecting them that the law actually says it must be served on RK within 14 days, and that it was not. And that i had a credible witness.

Edited by peterguk V6 KWK on Tuesday 13th May 21:49

Er, actually they are correct and you are wrong. The wording in S.1(1)(c) states that, a notice setting out the possibility of that prosecution must have been sent to the driver or registered keeper of the vehicle within 14 days of the offence.
There is the presumption under section 1 (3) that in every case it will be deemed to have been served unless the contrary is proved.
The process of posting is deemed as service, not the time of receipt by the individual.
If it was posted within 14 days, the time frame is valid. Sorry.

[peterguk V6 KWK]

GFO875 said:

There is the presumption under section 1 (3) that in every case it will be deemed to have been served unless the contrary is proved.

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 thev date of offence

And i intend proving the contrary by producing my witness.

You may be right, my solicitors may be right. We'll find out in July.

Edited by peterguk V6 KWK on Tuesday 13th May 22:20

[HRG]

GFO875 said:

peterguk V6 KWK said:

I received a reply from SCP stating that the law says they have to post the NIP within 14 days, and that they had done so.

I replied, respectfully corrrecting them that the law actually says it must be served on RK within 14 days, and that it was not. And that i had a credible witness.

Edited by peterguk V6 KWK on Tuesday 13th May 21:49

Er, actually they are correct and you are wrong. S.1 (1)c states that a notice setting out the possibility of that prosecution must have been sent to the driver or registered keeper of the vehicle within 14 days of the offence.
S1 (3) RTOA 1988 - The Presumption is - The requirement of subsection 1 shall in every case be deemed to have been complied with unless and until the contrary is proved.
The act of posting is deemed to be service of the notice, not the date on which it is received by the addresee. Sorry.

Nope, it must be sent such that it can reasonably be expected to be received within 14 days.

[peterguk V6 KWK]

HRG said:

Nope, it must be sent such that it can reasonably be expected to be received within 14 days.

And the SCP shoved it in a post sack alledly 1st class post in the middle of a well publicised national postal strike.

[SS2.]

GFO875 said:

Er, actually they are correct and you are wrong. The wording in S.1(1)(c) states that, a notice setting out the possibility of that prosecution must have been sent to the driver or registered keeper of the vehicle within 14 days of the offence.
There is the presumption under section 1 (3) that in every case it will be deemed to have been served unless the contrary is proved.
The process of posting is deemed as service, not the time of receipt by the individual.
If it was posted within 14 days, the time frame is valid. Sorry.

I disagree.

A notice must be posted in such time that it would be delivered within 14 days of the alleged offence in the normal course of post.

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).

Where first class post is used, service is presumed to have been effected at the time when the notice would have been delivered in the normal course of post. Despite the recent Scottish travesty case in which the judge seemingly 'overlooked' the deeming provisions applicable to first class postal service, this presumption of service is rebuttable by the giving of evidence under oath.

If evidence can be adduced which shows, on the balance of probabilities, that the notice was served outwith the 14 days required by s.1 RTOA '88, then this would preclude prosecution of the offence to which the notice refers.

[johnnywb]

Have you been over to Pepipoo?

If not, head over there, they will arm you upto the teeth with everything you need!

best of luck!

[peterguk V6 KWK]

johnnywb said:

Have you been over to Pepipoo?

If not, head over there, they will arm you upto the teeth with everything you need!

best of luck!

Thanks. Yep, i posted last Autumn, but TBH got very little assistance.

[SS2.]

And do you really want to tell Nick Freeman that he is wrong ?

Telegraph said:

Flintoff cleared of speeding.

Mr Flintoff, a father of three, who lives in Altrincham, Cheshire, had been accused of speeding in a temporary 50mph zone of the M62 motorway near Huyton, Liverpool when he was driving a friend’s car on July 1, 2007.

<..snip..>

Mr [Nick] Freeman said it was “fundamental” to any speeding case that the notice of prosecution was sent and received within 14 days of the offence, but the document only arrived on July 19.

Full article here.

[tigger1]

SS2. said:

And do you really want to tell Nick Freeman that he is wrong ?

Telegraph said:

Flintoff cleared of speeding.

Mr Flintoff, a father of three, who lives in Altrincham, Cheshire, had been accused of speeding in a temporary 50mph zone of the M62 motorway near Huyton, Liverpool when he was driving a friend’s car on July 1, 2007.

<..snip..>

Mr [Nick] Freeman said it was “fundamental” to any speeding case that the notice of prosecution was sent and received within 14 days of the offence, but the document only arrived on July 19.

Full article here.

I'd have to charge him for my advice, but I thought that a notice was considered served when sent by (first class) post on the day it would normally arrive? The article on that one doesn't specify when the NIP was posted, and it is VERY scarce on what other "facts" Mr Freeman felt were amiss with Flintoff's case...

[SS2.]

tigger1 said:

I'd have to charge him for my advice, but I thought that a notice was considered served when sent by (first class) post on the day it would normally arrive?

Postage by 1st class creates a presumption of service; a presumption which is rebuttable.

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.

tigger1 said:

The article on that one doesn't specify when the NIP was posted, and it is VERY scarce on what other "facts" Mr Freeman felt were amiss with Flintoff's case...

Its probably a safe bet that NF was relying on the fact that the initial [first class posted] notice was served outwith the 14 days required by RTOA '88. As I see it, the female RK was present at court solely to provide evidence to support that assertion.

Edited by SS2. on Tuesday 13th May 23:36

[Boosted LS1]

And if the mail goes to the wrong address for 13 days before being redirected to you, you should also be able to rebutt service assuming there are two postmarks on the envelope or you have a witness or some proof of the delay.

[EU_Foreigner]

Wrong address is different, as it was deemed to have been served in normal course of delivery. However, in the case of the postal strike, it was not possible to assume normal delivery, so they either would have to deliver it by courier or any other means which ensured a serving within the 14 days timeframe.

Goverment published at the time of the strike, that posting of VAT returns and other payments to the government would not be accepted as being late, as the public knew there was a postal strike and hence that more time should be allowed for payments to be received by the relevant departments. If "they" know that money in will be delayed, they should also know that NIPs out will be delayed.

[DBSV8]

tigger1 said:

SS2. said:

And do you really want to tell Nick Freeman that he is wrong ?

Telegraph said:

Flintoff cleared of speeding.

Mr Flintoff, a father of three, who lives in Altrincham, Cheshire, had been accused of speeding in a temporary 50mph zone of the M62 motorway near Huyton, Liverpool when he was driving a friend’s car on July 1, 2007.

<..snip..>

Mr [Nick] Freeman said it was “fundamental” to any speeding case that the notice of prosecution was sent and received within 14 days of the offence, but the document only arrived on July 19.

Full article here.

I'd have to charge him for my advice, but I thought that a notice was considered served when sent by (first class) post on the day it would normally arrive? The article on that one doesn't specify when the NIP was posted, and it is VERY scarce on what other "facts" Mr Freeman felt were amiss with Flintoff's case...

The Op is correct ,

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,

The clarification is on ""Served on him "" to deliver (a legal document) to (a person) within 14 days.

Therefore If the post was late or the post was lost the recipient did not receive with in the stated 14 day period.

I would also quote in court the Nic Freeman case .

Looks likely with a witness , this will be dropped ...............good luck

[Boosted LS1]

EU_Foreigner said:

Wrong address is different, as it was deemed to have been served in normal course of delivery. However, in the case of the postal strike, it was not possible to assume normal delivery, so they either would have to deliver it by courier or any other means which ensured a serving within the 14 days timeframe.

If it went to 64 Brook Street or any house on Brook St by mistake when clearly addressed to 644 Brook st and was there for 12 days before the resident at 64 redirected it the correct address then it won't arrive in time. So, the person who should have received it could testify that it had been to the wrong address due to a postal error. All he would need to show would be the postmarks to support his evidence or anything else to account for a delay. This is my train of thought. Scammers don't want to pay for recorded delivery because it costs etc.

[EU_Foreigner]

But how easy would it be to give the unopened NIP (you recognise it from the outside) to your neighbour, ask them to sit on it, and sent back on day 12?

[supermono]

EU_Foreigner said:

But how easy would it be to give the unopened NIP (you recognise it from the outside) to your neighbour, ask them to sit on it, and sent back on day 12?

Or for that matter, when it arrives write on "Misdelivered -- return to sender" and pop it back in the post...

SM

[RichBurley]

EU_Foreigner said:

But how easy would it be to give the unopened NIP (you recognise it from the outside) to your neighbour, ask them to sit on it, and sent back on day 12?

Very easy, but it wouldn't help. The NIP would be treated as being correctly served for the purposes of the proceedings, if the NIP has the correct address of the registered keeper on it, irrespective of whether it was received or not.

[Boosted LS1]

EU_Foreigner said:

But how easy would it be to give the unopened NIP (you recognise it from the outside) to your neighbour, ask them to sit on it, and sent back on day 12?

You wouldn't have to. If something's written on the unopened envelope, like 'delivered to wrong address try the correct address' or 'not so & so street try the correct street' etc then the 14 days gets wasted and they're stuffed. With some imagination it's easy to waste the 14 days and stop them getting off to a flying start. Nip it in the bud if you know they're coming for you but collect some evidence of delay or incorrect delivery before you got it.

[vonhosen]

Sent to the incorrect address doesn't automatically mean that the NIP is invalid (Rogerson v Edwards (1951))