NIP after 16 Days - Pleading Not Guilty - Update

[Zeeky]

TPAC said:

Zeeky said:

If receipt is not relevant to service being made, what relevance is your suggested defence of not having received the NIP after it has been signed for by someone else in the house? The ordinary course of post only requires that it is signed for at the address not by the intended recipient.

The potential defence of refusal to sign is accounted for in para 2 with regards to the notice being returned undelivered but no-one has given an explanation of why rec and reg del needs the additional "or was for any other reason not received by him".

Why does the legislation specifically refer to non-receipt in para 2 and only with respect to rec and reg delivery if non-receipt is not relevant to service in the first place?

It wasn't suggested that any of the above scenarios are defences. On the contrary: The wording is making it clear that the service lies in the sending, and no contentions that the letter was not received by the defendant by virtue of having been sent by registered post or recorded delivery, will invalidate that service.

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.

Which wording are you referring to, para 1a or para 2?

Edited by Zeeky on Friday 25th July 11:21

[Zeeky]

Quinny said:

vonhosen said:

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

vonhosen said:

Even if a Magistrate came to that judgment it doesn't automatically follow that it is right.

Way to move the goalposts there Von

So which is it???

I imagine a higher court whose decisions are binding on the Mags

[TPAC]

Zeeky said:

TPAC said:

Zeeky said:

If receipt is not relevant to service being made, what relevance is your suggested defence of not having received the NIP after it has been signed for by someone else in the house? The ordinary course of post only requires that it is signed for at the address not by the intended recipient.

The potential defence of refusal to sign is accounted for in para 2 with regards to the notice being returned undelivered but no-one has given an explanation of why rec and reg del needs the additional "or was for any other reason not received by him".

Why does the legislation specifically refer to non-receipt in para 2 and only with respect to rec and reg delivery if non-receipt is not relevant to service in the first place?

It wasn't suggested that any of the above scenarios are defences. On the contrary: The wording is making it clear that the service lies in the sending, and no contentions that the letter was not received by the defendant by virtue of having been sent by registered post or recorded delivery, will invalidate that service.

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.

Which wording are you referring to, para 1a or para 2?

Edited by Zeeky on Friday 25th July 11:21

Sorry? Paragraphs? Do you mean Section One or Section 2?

[vonhosen]

SS2. said:

vonhosen said:

It was decided in Groome v Driscoll (1969) 113 SJ 905, that a notice of intended prosecution posted the day after the offence which failed to arrive within 14 days was deemed to have been served,

But Groome v Driscoll refers to a notice served by recorded delivery, not first class post.

Yep but it's still about the issue of service meaning it being sent at a time so that it would be expected to be delivered within the ordinary course of the post, not actually having to arrive in that time for it to mean service has taken place.

Just as the Interpretation Act states for first class post, that it is considered served when sent to arrive within the ordinary course of the post.

[vonhosen]

Zeeky said:

vonhosen said:

Zeeky said:

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" applies equally to rec and reg del and First Class Post.

Service is not defined within the legislation in terms of arriving at the address, it is defined as posted to arrive within the ordinary course of the post within 14 days.

I will persevere with this as I don't think you are getting my point.

If receipt is not relevant to service being made, what relevance is your suggested defence of not having received the NIP after it has been signed for by someone else in the house? The ordinary course of post only requires that it is signed for at the address not by the intended recipient.

The potential defence of refusal to sign is accounted for in para 2 with regards to the notice being returned undelivered but no-one has given an explanation of why rec and reg del needs the additional "or was for any other reason not received by him".

Why does the legislation specifically refer to non-receipt in para 2 and only with respect to rec and reg delivery if non-receipt is not relevant to service in the first place?

Because unless it's signed for with recorded delivery, you wouldn't expect it to be delivered within the normal course of the post within 14 days (as signature would be a condition of delivery). There is no such requirement with first class post, so no need to stipulate. It's either sent in what's considered good time or not.

[vonhosen]

Quinny said:

vonhosen said:

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

vonhosen said:

Even if a Magistrate came to that judgment it doesn't automatically follow that it is right.

Way to move the goalposts there Von

So which is it???

It have thought that was obvious.
The ruling of the higher courts would be binding.
If there is legal argument over interpretation without that point having been tested in the highest courts then it is the choice of either party to take it that far. Ultimately it's the highest courts that decide & set precedence.

[SS2.]

vonhosen said:

Yep but it's still about the issue of service meaning it being sent at a time so that it would be expected to be delivered within the ordinary course of the post, not actually having to arrive in that time for it to mean service has taken place.

If simply posting (in good time) by first class mail should be deemed sufficient to effect service, then why did the 1994 CJPO amendment (to allow for 1st class post) leave s.1(2) RTOA 1988 in place ?

s.1 RTOA 1988 said:

2. A notice shall be deemed for the purposes of subsection 1c 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.

[vonhosen]

SS2. said:

vonhosen said:

Yep but it's still about the issue of service meaning it being sent at a time so that it would be expected to be delivered within the ordinary course of the post, not actually having to arrive in that time for it to mean service has taken place.

If simply posting (in good time) by first class mail should be deemed sufficient to effect service, then why did the 1994 CJPO amendment (to allow for 1st class post) leave s.1(2) RTOA 1988 in place ?

s.1 RTOA 1988 said:

2. A notice shall be deemed for the purposes of subsection 1c 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.

For the reasons I said above.
When it's sent by recorded delivery (even the day after the offence) you can't say when it will be signed for if at all. There isn't an expectation that it will be delivered within 14 days because of the requirement for a signature.
With 1st class post there is no such requirement. If it's sent the day after the offence you can expect that it will be posted through the letterbox before the 14 days are up.

As I say the Interpretation Act gives us the position that service is deemed to have been carried out at the point of sending. The RTOA doesn't clearly undermine that & that's why this will be argued until the issue is heard in the highest courts & a definitive ruling is made.

[Zeeky]

vonhosen said:

zeeky said:

Why does the legislation specifically refer to non-receipt in para 2 and only with respect to rec and reg delivery if non-receipt is not relevant to service in the first place?

Because unless it's signed for with recorded delivery, you wouldn't expect it to be delivered within the normal course of the post within 14 days (as signature would be a condition of delivery). There is no such requirement with first class post, so no need to stipulate. It's either sent in what's considered good time or not.

I am struggling now.

You say that para 2 exists to deal with the problem of a notice not being signed for (by implication then it is not to deal with anything else).

As such it obviously only needs to apply to rec and reg delivery as only they need signing for.

So we agree there may be a need for the following words.

"notwithstanding that the notice was returned as undelivered"

This takes care of the accused not accepting the notice.



Now look at the final part of para 2

"or was for any other reason not received by him"

What does this have to do with the issue of refusing to sign for the notice?

To me it captures any possibility of a defence of non-receipt regardless of whether that is related to refusal of delivery or not.


So, if you cannot justify the need for this part of the para with relation to refusing to sign then what is it there for?

(Note, you cannot justify the need for this part of the para merely by reference to the fact the reg and red delivery needs signing for. You need to show why this part captures only failing to sign and nothing else)

If you cannot do this then the question is still 'why is it there?' It appears clear to me that it makes non-service unavailable as a defence in any case of reg or rec delivery. If this is implicit in para 1a why is it necessary to state it in para 2 and why only in relation to reg and rec del?

Edited by Zeeky on Friday 25th July 15:46

[SS2.]

vonhosen said:

..that's why this will be argued until the issue is heard in the highest courts & a definitive ruling is made.

Probably. But, in the meantime at least, defendants will have to continue to rely on Beer v Davis and MacLeod v Anderson (OK, a Scottish High Court case) which provide that no delivery = no service.

[Zeeky]

TPAC said:

Sorry? Paragraphs? Do you mean Section One or Section 2?

Paragraphs 1a and 2 of Section 1

Edited by Zeeky on Friday 25th July 15:58

[Zeeky]

vonhosen said:

As I say the Interpretation Act gives us the position that service is deemed to have been carried out at the point of sending. The RTOA doesn't clearly undermine that & that's why this will be argued until the issue is heard in the highest courts & a definitive ruling is made.

However the IA gives the accused an opportunity to prove this to the contrary. In what way does the RTOA undermine this part of the legislation?

Your references to the case law actually undermine your argument as the English Courts have clearly made the distinction between rec del and 1st class post when dealing with the issue of actual non-receipt. Furthermore they clearly rely on para 2 in their reasoning. Para 2 doesn't apply to 1st class post.

This leaves you almost wholly reliant on para 1a which you submit limits valid service only to sending out the notice in time, regardless of whether it is received or not.

"A notice required by this section to be served on any person may be served on that person...by sending it by registered post, recorded delivery service or first class post addressed to him at his last known address."

Your submissions will have to account for the use of the word "may" instead of 'will' or 'deemed to' as we might expect if that was the intention.

You will then have to explain the final part of para 2, that is, "or was for any other reason not received by him" if para 1a already precludes non-receipt as a defence. (para 1a was added after 2 so it may be an oversight, hence the confusion)

Finally you will have to deal with the case law which is persuasive against you except for PF Dumfires v Cotton which may give you something to cite but only obiter and from a Scottish Court.


It is quite possible for an appeal court to give the legislation a creative interpretation for policy reasons (that is to avoid opening the floodgates and clogging up the Courts). Having said that it seems clear to me the CPS can get round this by using recorded delivery so stretching the meaning of legislation may not be considered the appropriate judicial response.

Edited by Zeeky on Friday 25th July 16:29

[TPAC]

Zeeky said:

TPAC said:

Sorry? Paragraphs? Do you mean Section One or Section 2?

Paragraphs 1a and 2 of Section 1

Edited by Zeeky on Friday 25th July 15:58

Still don't understand what you are querying. But Section One (3)covers everything other than what goes before it.

[TPAC]

Zeeky said:

vonhosen said:

zeeky said:

Why does the legislation specifically refer to non-receipt in para 2 and only with respect to rec and reg delivery if non-receipt is not relevant to service in the first place?

Because unless it's signed for with recorded delivery, you wouldn't expect it to be delivered within the normal course of the post within 14 days (as signature would be a condition of delivery). There is no such requirement with first class post, so no need to stipulate. It's either sent in what's considered good time or not.

I am struggling now.

You say that para 2 exists to deal with the problem of a notice not being signed for (by implication then it is not to deal with anything else).
It deals with recorded delivery letters in general. Stops people saying, "well it was sent recorded delivery, so I never got it" (for any reason). Section One (3) deals with anything and everything else.

As such it obviously only needs to apply to rec and reg delivery as only they need signing for.

So we agree there may be a need for the following words.

"notwithstanding that the notice was returned as undelivered"

This takes care of the accused not accepting the notice.
No, as its been taken care of, as above

Now look at the final part of para 2

"or was for any other reason not received by him"

What does this have to do with the issue of refusing to sign for the notice?
ditto
To me it captures any possibility of a defence of non-receipt regardless of whether that is related to refusal of delivery or not.

Do you mean precludes any possibility of a defence? Because that would be the correct interpretation.

So, if you cannot justify the need for this part of the para with relation to refusing to sign then what is it there for?

(Note, you cannot justify the need for this part of the para merely by reference to the fact the reg and red delivery needs signing for. You need to show why this part captures only failing to sign and nothing else)

If you cannot do this then the question is still 'why is it there?' It appears clear to me that it makes non-service unavailable as a defence in any case of reg or rec delivery. If this is implicit in para 1a why is it necessary to state it in para 2 and why only in relation to reg and rec del?

Edited by Zeeky on Friday 25th July 15:46

more dittos

[Zeeky]

TPAC said:

Zeeky said:

vonhosen said:

zeeky said:

Why does the legislation specifically refer to non-receipt in para 2 and only with respect to rec and reg delivery if non-receipt is not relevant to service in the first place?

Because unless it's signed for with recorded delivery, you wouldn't expect it to be delivered within the normal course of the post within 14 days (as signature would be a condition of delivery). There is no such requirement with first class post, so no need to stipulate. It's either sent in what's considered good time or not.

I am struggling now.

You say that para 2 exists to deal with the problem of a notice not being signed for (by implication then it is not to deal with anything else).
It deals with recorded delivery letters in general. Stops people saying, "well it was sent recorded delivery, so I never got it" (for any reason). Section One (3) deals with anything and everything else.

As such it obviously only needs to apply to rec and reg delivery as only they need signing for.

So we agree there may be a need for the following words.

"notwithstanding that the notice was returned as undelivered"

This takes care of the accused not accepting the notice.
No, as its been taken care of, as above

Now look at the final part of para 2

"or was for any other reason not received by him"

What does this have to do with the issue of refusing to sign for the notice?
ditto
To me it captures any possibility of a defence of non-receipt regardless of whether that is related to refusal of delivery or not.

Do you mean precludes any possibility of a defence? Because that would be the correct interpretation.

So, if you cannot justify the need for this part of the para with relation to refusing to sign then what is it there for?

(Note, you cannot justify the need for this part of the para merely by reference to the fact the reg and red delivery needs signing for. You need to show why this part captures only failing to sign and nothing else)

If you cannot do this then the question is still 'why is it there?' It appears clear to me that it makes non-service unavailable as a defence in any case of reg or rec delivery. If this is implicit in para 1a why is it necessary to state it in para 2 and why only in relation to reg and rec del?

Edited by Zeeky on Friday 25th July 15:46

more dittos

You appear immensely confused. If you cannot follow my reasoning then I fear there is little more I can do to assist you. Your reasoning is disjointed and based on presumptions that are not supported by the text of legislation.

Hopefully Vonhosen can follow the logic and offer a more coherent response.

[Zeeky]

TPAC said:

Zeeky said:

TPAC said:

Sorry? Paragraphs? Do you mean Section One or Section 2?

Paragraphs 1a and 2 of Section 1

Edited by Zeeky on Friday 25th July 15:58

Still don't understand what you are querying.

As I said, you are confused and there is little I can do about that.

[TPAC]

Zeeky said:

TPAC said:

Zeeky said:

vonhosen said:

zeeky said:

Why does the legislation specifically refer to non-receipt in para 2 and only with respect to rec and reg delivery if non-receipt is not relevant to service in the first place?

Because unless it's signed for with recorded delivery, you wouldn't expect it to be delivered within the normal course of the post within 14 days (as signature would be a condition of delivery). There is no such requirement with first class post, so no need to stipulate. It's either sent in what's considered good time or not.

I am struggling now.

You say that para 2 exists to deal with the problem of a notice not being signed for (by implication then it is not to deal with anything else).
It deals with recorded delivery letters in general. Stops people saying, "well it was sent recorded delivery, so I never got it" (for any reason). Section One (3) deals with anything and everything else.

As such it obviously only needs to apply to rec and reg delivery as only they need signing for.

So we agree there may be a need for the following words.

"notwithstanding that the notice was returned as undelivered"

This takes care of the accused not accepting the notice.
No, as its been taken care of, as above

Now look at the final part of para 2

"or was for any other reason not received by him"

What does this have to do with the issue of refusing to sign for the notice?
ditto
To me it captures any possibility of a defence of non-receipt regardless of whether that is related to refusal of delivery or not.

Do you mean precludes any possibility of a defence? Because that would be the correct interpretation.

So, if you cannot justify the need for this part of the para with relation to refusing to sign then what is it there for?

(Note, you cannot justify the need for this part of the para merely by reference to the fact the reg and red delivery needs signing for. You need to show why this part captures only failing to sign and nothing else)

If you cannot do this then the question is still 'why is it there?' It appears clear to me that it makes non-service unavailable as a defence in any case of reg or rec delivery. If this is implicit in para 1a why is it necessary to state it in para 2 and why only in relation to reg and rec del?

Edited by Zeeky on Friday 25th July 15:46

more dittos

You appear immensely confused. If you cannot follow my reasoning then I fear there is little more I can do to assist you. Your reasoning is disjointed and based on presumptions that are not supported by the text of legislation.

Erm, yeah, ok. As a humble lawyer in a police force I guess I am bit dim.sorry.

Hopefully Vonhosen can follow the logic and offer a more coherent response.

[peterguk V6 KWK]

Zeeky said:

vonhosen said:

As I say the Interpretation Act gives us the position that service is deemed to have been carried out at the point of sending. The RTOA doesn't clearly undermine that & that's why this will be argued until the issue is heard in the highest courts & a definitive ruling is made.

However the IA gives the accused an opportunity to prove this to the contrary. In what way does the RTOA undermine this part of the legislation?

I have to admit i am slightly confused here....

VH's quote above says service is deemed to be carried out at point of sending, so, in other words, there is no defence, regardless of what happens to the document, whether delivered within 14 days, outside of 14 days or never due to loss by the Post Office.

Yet in one legal dictionary i have found, service is defined as:

SERVICE, practice: To execute a writ or process........ to serve a summons, is to deliver a copy of it at the house of the party, or to deliver it to him personally, or to read it to him; notices and other papers are served by delivering the same at the house of the party, or to him in person.

Nothing about sending mentioned....

Furthermore, if NIP allows accused to take a FP, and he never receives the NIP, then he would lose the right to FP and have to be dealt with by Court. Yet he has done nothing wrong..

Edited by peterguk V6 KWK on Friday 25th July 19:12

[TPAC]

peterguk V6 KWK said:

Zeeky said:

vonhosen said:

As I say the Interpretation Act gives us the position that service is deemed to have been carried out at the point of sending. The RTOA doesn't clearly undermine that & that's why this will be argued until the issue is heard in the highest courts & a definitive ruling is made.

However the IA gives the accused an opportunity to prove this to the contrary. In what way does the RTOA undermine this part of the legislation?

I have to admit i am slightly confused here....

VH's quote above says service is deemed to be carried out at point of sending, so, in other words, there is no defence, regardless of what happens to the document, whether delivered within 14 days, outside of 14 days or never due to loss by the Post Office.

Yet in one legal dictionary i have found, service is defined as:

SERVICE, practice: To execute a writ or process........ to serve a summons, is to deliver a copy of it at the house of the party, or to deliver it to him personally, or to read it to him; notices and other papers are served by delivering the same at the house of the party, or to him in person.

Nothing about sending mentioned....

Furthermore, if NIP allows accused to take a FP, and he never receives the NIP, then he would lose the right to FP and have to be dealt with by Court. Yet he has done nothing wrong..

Edited by peterguk V6 KWK on Friday 25th July 19:12

I think Von is saying that, in his opinion you don't have a valid defence because the relevant section of the RTA precludes it, and the Interpretation Act defines the wording of the RTA. But he is, tactfully, suggesting that, if the magistrates do not give you a favourable decision, you could try to appeal and see if a higher court is prepared to re-examine. What WOULD be a valid defence is: If the NIP was not posted to you until day ten or so, AND the postal strike was anticipated to cause a delay of perhaps three days. Thats why I asked if you knew the precise details of that strike (and the date upon which the police claim to have sent the NIP).
Your other point, regarding the prejudice caused to you if the NIP never arrived at all, and you lost the opportunity of having it dealt with by way of FP: Well thats exactly when you would turn up in court and say that had you received it you would have wanted to be dealt with by FP. You offer to pay the fine now. And it would be accepted.

[Zeeky]

peterguk V6 KWK said:

Zeeky said:

vonhosen said:

As I say the Interpretation Act gives us the position that service is deemed to have been carried out at the point of sending. The RTOA doesn't clearly undermine that & that's why this will be argued until the issue is heard in the highest courts & a definitive ruling is made.

However the IA gives the accused an opportunity to prove this to the contrary. In what way does the RTOA undermine this part of the legislation?

I have to admit i am slightly confused here....

VH's quote above says service is deemed to be carried out at point of sending, so, in other words, there is no defence, regardless of what happens to the document, whether delivered within 14 days, outside of 14 days or never due to loss by the Post Office.

Yet in one legal dictionary i have found, service is defined as:

SERVICE, practice: To execute a writ or process........ to serve a summons, is to deliver a copy of it at the house of the party, or to deliver it to him personally, or to read it to him; notices and other papers are served by delivering the same at the house of the party, or to him in person.

Nothing about sending mentioned....

To define the meaning of 'service' you first need to look at the Act itself.

Unfortunately the Act doesn't provide a definition.

It is VH's view (as it was the HCJ's in the Cotton case) that because para 1a refers to the notice being sent but says nothing about it having to be received it follows that for the purposes of this part of the Act service has been achieved merely by sending the notice.

"(1A) A notice required by this section to be served on any person may be served on that person by sending it by registered post, recorded delivery service or first class post addressed to him at his last known address"


My view is that this para is merely a list of valid means of service and in the abscence of any clear intention of the Act itself it should be defined in the ordinary way.

If I am right the next stop is to look at the Interpretation Act 1978.

The IA states that where legislation is not clear service will be defined thus:-

S7 "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"

There is no need to look in a dictionary as we have the definition above.


So we know that service is to be treated as having happened regardless of whether or not the notice is actually received.

However, if the accused can prove he didn't receive the notice then it will be treated as not having been served.

This last part is contentious as VH is saying we should ignore it on the basis that para 1a of the RTOA is clear that receipt is unnecessary.

He also says that we must rely on the rest of the definition to understand the meaning of service as this isn't clear in para 1a.

Para 1a is the key. It is the interpretation of this that will decide whether or not non-receipt is available as a defence to the accused when notice is sent by first class post.

Edited by Zeeky on Friday 25th July 22:49