Late NIP - Finally, VICTORY IN THE HIGH COURT
Discussion
Some of you may remember i asked for advice following late arrival of an NIP back in October 2007. Not been able to say much here with what's been going on....
Well today was my day in Court - the High Court
http://news.bbc.co.uk/1/hi/england/south_yorkshire...
http://www.thestar.co.uk/york/Speeding-conviction-...
My thanks to those here who helped with advice, and my solicitor John Josephs of Turner, Coulston and my Counsel, Archie Madden.
Well today was my day in Court - the High Court
http://news.bbc.co.uk/1/hi/england/south_yorkshire...
http://www.thestar.co.uk/york/Speeding-conviction-...
My thanks to those here who helped with advice, and my solicitor John Josephs of Turner, Coulston and my Counsel, Archie Madden.
sleep envy said:
well done
may I ask how you proved you received it in the 16th day?
My postman was witness to me opening it. The CPS at my CC Appeal accepted it was received late, and took me on on the point of law. The CC Judge mis-directed himself on a point of law, so we took it to the High Court.may I ask how you proved you received it in the 16th day?
To those who see me as "getting away with it". -
I fought this as a matter of principal - with my own funds. The law enforcers have to abide by the law, and if no one questions them, the people are treated unjustly, unfairly and in some cases, illegally.
My case was perfect to take to the High Court, and was the first time this matter had been taken to the High Court since the 1994 amendment to the RTOA allowing 1st class post.
The facts had been agreed between both sides, so it was simply a case of having the law clarified.
hora said:
No offence OP, the post title etc made me believe there was a sense that you triumphed over injustice? (the CAPS etc) Again, no offence but you were caught speeding and got off on a technicality? I was looking for a fellow PH'er who had righted a 'wrong'. Oh hum.
"Lord Justice Elias ...... rejected arguments supported by lower courts that so long as prosecution warning notices were posted within 14 days - so that in ordinary circumstances they would arrive in time - they were deemed to have been properly served."Edited by hora on Friday 30th October 08:41
I triumphed over two injustices actually.
Paddy_N_Murphy said:
Jasandjules said:
Well done.
That is even more interesting in light of the current postal problems.
Reading this thread, I thought exactly that - similarly over say the festive period - The post is obviously delayed.That is even more interesting in light of the current postal problems.
Would this also mean that the NIP's then that are received after 14 days irrespective of when they were processed would be quashed?
If the NIP is sent within time, to the last known RK, at the last known address, by 1st class post, and arrives out of time, then it is for the recepient to show the Court, to their satisfaction, that it arrived out of time.
Do that, and job done.
AMG Merc said:
Peter, well done. Would you be interested in running for PM at the next election?!
Regarding the law - please clarify - does the NIP need to be POSTED within 14 days or to actually ARRIVE at your registered address within 14 days?
The High Court has now clarified that it must arrive within 14 days.Regarding the law - please clarify - does the NIP need to be POSTED within 14 days or to actually ARRIVE at your registered address within 14 days?
Urbalizer said:
haha, nice one Peter, you took them on and won, i know what this means to you so i bet your are over the moon with that verdict. I know what you must have gone through i am currently in a 2 year battle with an insurance company.
They try to wear you down, but giving in is a sure way of losing, well done m8.
Cant believe it, is this the 1st case of its kind taken to high court? If so, you have have made legal history and set a precedent, but you know when your right your right, and the law is the law, if not "received" within in 14 days then it is invalid
Thanks ChrisThey try to wear you down, but giving in is a sure way of losing, well done m8.
Cant believe it, is this the 1st case of its kind taken to high court? If so, you have have made legal history and set a precedent, but you know when your right your right, and the law is the law, if not "received" within in 14 days then it is invalid
Yes, this is the first clallenge in the High Court of this point - i.e. if sent 1st class, and sent in good time, and arrives late, is it good service.
We have made legal history
Full Press Association report:
A motorist had a speeding conviction quashed by the High Court today (29/10/09) - because a 2007 postal strike led to the late delivery of a crucial prosecution document. Motoring laws might now have to be amended to prevent other drivers attempting to take advantage of similar late deliveries during the current or future mail strikes.
A statutory notice was sent warning Peter Gidden, 48, who runs his own specialist Toyota sports car workshop, that he had been caught by a speed camera and the police intended to prosecute, but it arrived two days late. The law states that such notices must be delivered within 14 days.
Gidden was jubilant after the judges allowed his appeal against Grimsby Crown Court's decision in February to uphold a speeding conviction imposed by S
horpe magistrates last October.
He faced prosecution under the 1988 Road Traffic Offenders Act. The judges quashed his conviction and set aside fines and legal costs totalling #680. They also wiped out the three penalty points endorsed on his licence and awarded him legal costs out of public funds.
Gidden said he had been driving on the M180 in Lincolnshire at 8.10am on October 6 2007 when a speed camera recorded him as exceeding the speed limit, clocking him at 85mph in the inside lane.
He said he had unsuccessfully fought his case in person before the magistrates and the Crown Court.
He then employed a legal team led by barrister Archie Maddan to fight his case in the High Court at a cost of some £8,000.
Gidden said: "In a way this is a matter of principle. Law enforcers have to work within the law to gain the respect of the general public.
"In many ways I think they are losing the respect of the middle-class general public which they have always needed, and had, in this country."
In his ruling, Lord Justice Elias said Gidden's appeal "must succeed", and Mr Justice Openshaw agreed.
Lord Justice Elias said: "The notice of intended prosecution was not sent in time and could not be regarded as having been properly served. "It follows that the conviction must be set aside."
He added: "I appreciate that this construction of the legislation may create problems for the police and prosecuting authorities, particularly when the postal service is on strike with the inevitable delays in delivery.
"The authorities must then adopt other means of warning, if they are to avoid the risk of late delivery.
"Alternatively, the remedy lies in the hands of Parliament by amending... the 1988 Act. "It is not, however, for the courts to overcome the resulting inconvenience by distorting the clear language which Parliament has adopted." The judge said alternatives included recorded delivery services or registered post, which were governed by different rules.
The one sent to Mr Gidden, of High Street, Dodworth, near Barnsley, South Yorkshire, took 16 days because of the backlog of undelivered mail built up after the strike in 2007.
Lord Justice Elias, sitting with Mr Justice Openshaw, ruled today the whole prosecution process was defective because the time limit had not been met, and Mr Gidden's conviction must be quashed.
He rejected arguments supported by lower courts that so long as prosecution warning notices were posted within 14 days - so that in ordinary circumstances they would arrive in time - they were deemed to have been properly served. Lord Justice Elias said: "This case raises an issue of some topicality given the current postal strike and is of no mere small interest."
He warned the police and prosecuting authorities not to use the first class post and said they must adopt other means of delivering "statutory notices of intended prosecution" (NIPs) if they were to avoid the risk of late delivery.
John Josephs, solicitor for Mr Gidden, said later: "One can only speculate about the impact of today's judgment.
"The police are aware of this situation. The Association of Chief Police Officers (ACPO) has been advising their members not to use first class post for NIPs." Mr Josephs said today's case was unusual in that it had been conceded at the Crown Court that Mr Gidden's warning notice had arrived late because of industrial action.
He predicted that, in other cases, where there had been no such concession, it might still prove difficult for defendants to convince the courts notices had genuinely arrived out of time.
Mr Josephs said: "This judgment is not a cheat's charter.
"It means that if a notice is served late because of a postal strike, or for some other reason, it will still be up to the defendant to prove that before the court.
"This is not a floodgates case, but postal strikes may strengthen a defendant's claim not to have been properly served with a notice."
The court heard that first class post deliveries for NIPs was first allowed under an amendment introduced by the 1994 Criminal Justice and Public Order Act. Prior to that notices were always served via registered post or recorded delivery, where there was a record to show they had actually been sent. Registered or recorded items are deemed to be served if sent to a defendant's last known address, even if they are returned as undelivered or not received for any other reason.
Lord Justice Elias suggested the same deeming provisions had not been extended to the first class post because of an "oversight".
But he said he could not rule out that it may have been deliberate Government policy, and it was for Parliament to make any changes that might now be necessary.
A motorist had a speeding conviction quashed by the High Court today (29/10/09) - because a 2007 postal strike led to the late delivery of a crucial prosecution document. Motoring laws might now have to be amended to prevent other drivers attempting to take advantage of similar late deliveries during the current or future mail strikes.
A statutory notice was sent warning Peter Gidden, 48, who runs his own specialist Toyota sports car workshop, that he had been caught by a speed camera and the police intended to prosecute, but it arrived two days late. The law states that such notices must be delivered within 14 days.
Gidden was jubilant after the judges allowed his appeal against Grimsby Crown Court's decision in February to uphold a speeding conviction imposed by S
horpe magistrates last October.He faced prosecution under the 1988 Road Traffic Offenders Act. The judges quashed his conviction and set aside fines and legal costs totalling #680. They also wiped out the three penalty points endorsed on his licence and awarded him legal costs out of public funds.
Gidden said he had been driving on the M180 in Lincolnshire at 8.10am on October 6 2007 when a speed camera recorded him as exceeding the speed limit, clocking him at 85mph in the inside lane.
He said he had unsuccessfully fought his case in person before the magistrates and the Crown Court.
He then employed a legal team led by barrister Archie Maddan to fight his case in the High Court at a cost of some £8,000.
Gidden said: "In a way this is a matter of principle. Law enforcers have to work within the law to gain the respect of the general public.
"In many ways I think they are losing the respect of the middle-class general public which they have always needed, and had, in this country."
In his ruling, Lord Justice Elias said Gidden's appeal "must succeed", and Mr Justice Openshaw agreed.
Lord Justice Elias said: "The notice of intended prosecution was not sent in time and could not be regarded as having been properly served. "It follows that the conviction must be set aside."
He added: "I appreciate that this construction of the legislation may create problems for the police and prosecuting authorities, particularly when the postal service is on strike with the inevitable delays in delivery.
"The authorities must then adopt other means of warning, if they are to avoid the risk of late delivery.
"Alternatively, the remedy lies in the hands of Parliament by amending... the 1988 Act. "It is not, however, for the courts to overcome the resulting inconvenience by distorting the clear language which Parliament has adopted." The judge said alternatives included recorded delivery services or registered post, which were governed by different rules.
The one sent to Mr Gidden, of High Street, Dodworth, near Barnsley, South Yorkshire, took 16 days because of the backlog of undelivered mail built up after the strike in 2007.
Lord Justice Elias, sitting with Mr Justice Openshaw, ruled today the whole prosecution process was defective because the time limit had not been met, and Mr Gidden's conviction must be quashed.
He rejected arguments supported by lower courts that so long as prosecution warning notices were posted within 14 days - so that in ordinary circumstances they would arrive in time - they were deemed to have been properly served. Lord Justice Elias said: "This case raises an issue of some topicality given the current postal strike and is of no mere small interest."
He warned the police and prosecuting authorities not to use the first class post and said they must adopt other means of delivering "statutory notices of intended prosecution" (NIPs) if they were to avoid the risk of late delivery.
John Josephs, solicitor for Mr Gidden, said later: "One can only speculate about the impact of today's judgment.
"The police are aware of this situation. The Association of Chief Police Officers (ACPO) has been advising their members not to use first class post for NIPs." Mr Josephs said today's case was unusual in that it had been conceded at the Crown Court that Mr Gidden's warning notice had arrived late because of industrial action.
He predicted that, in other cases, where there had been no such concession, it might still prove difficult for defendants to convince the courts notices had genuinely arrived out of time.
Mr Josephs said: "This judgment is not a cheat's charter.
"It means that if a notice is served late because of a postal strike, or for some other reason, it will still be up to the defendant to prove that before the court.
"This is not a floodgates case, but postal strikes may strengthen a defendant's claim not to have been properly served with a notice."
The court heard that first class post deliveries for NIPs was first allowed under an amendment introduced by the 1994 Criminal Justice and Public Order Act. Prior to that notices were always served via registered post or recorded delivery, where there was a record to show they had actually been sent. Registered or recorded items are deemed to be served if sent to a defendant's last known address, even if they are returned as undelivered or not received for any other reason.
Lord Justice Elias suggested the same deeming provisions had not been extended to the first class post because of an "oversight".
But he said he could not rule out that it may have been deliberate Government policy, and it was for Parliament to make any changes that might now be necessary.
Puff the magic.. said:
At the time the CC judge was making his decision he would also be considering the "proof" you brought that the letter was not received until day 16.
No, he woundn't have been considering that at all. The CPS had already conceded the NIP had arrived on day 16. The CC judge decided it did not matter if the NIP was posted recorded, registered or 1st class. He was wrong. Recorded and registered enjoy an irrebuttable presumption of delivery. 1st class post does not.Lord Justice Elias, sitting with Mr Justice Openshaw ...... rejected arguments supported by lower courts that so long as prosecution warning notices were posted within 14 days - so that in ordinary circumstances they would arrive in time - they were deemed to have been properly served.
streaky said:
peterguk M500 said:
Recorded and registered enjoy an irrebuttable presumption of delivery.
"Recorded Signed For" gives proof of postage and a signature on delivery. There is no "irrebuttable presumption of delivery". Indeed, as a signature is required on delivery, failure to produce a valid signature would be deemed a failure to deliver (i.e. non-receipt). I say "valid" as there are numerous reports of posties signing themselves and simply stuffing the letter through the letterbox (I've had experiences of that). I have had instances where the letter has been delivered, but no signature has been obtained. On the basis of better than anecdotal evidence (which, by the nature of the service, it provides) it should be possible to introduce resonable doubt in any case where there is no signature - StreakyThe wording of S.1(2) is such that if a NIP is served on a last known address, using registered or recorded post, then service of the NIP is deemed to have been effected on the alleged offender even if it is returned unknown or not received by him. (Nicholson v Tapp [1972] 1WLR 1044)
Nicholson v Tapp [1972] 1WLR 1044 - It was held that so long as a notice was sent by registered or recorded post at such a time that it would arrive within fourteen days in the usual course of post then an irrebuttable presumption of service would apply.
Boosted LS1 said:
^ But that isn't good service at all so is there still the option of going to court to explain that you were abroad on business if you were or away on holiday?
Nope, as long as it enters the system by recorded or registered post, that's good enough.RTOA 1988
"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."
Boosted LS1 said:
If not the laws a farce where fining motorists is concerned.
Correct.One of the guys on my team said something to me which i havn't forgotten:
We're dealing with Courts of Law, not Courts of Justice.
CardShark said:
Someone may have already noted this but the two links say different things - the BBC says 'The law states that police must send notice of intention to prosecute within 14 days of an alleged offence.' where as The Star says it must be 'delivered within 14 days'.
Sounds like the notice of intention was sent before 14 days but recieved after, however if the law says that it must be recieved (ie not what the BBC states) within 14 days then it all sounds pretty flippin simple to me. Feel a bit miffed that it went so far through the courts as that was some of my tax contribution being spent, and all on trying to win the unwinable.
Well contested and well won
Law says it must served within 14 days. The High Court have now defined "served", and clarified the difference between service by recorded or registered, and first class.Sounds like the notice of intention was sent before 14 days but recieved after, however if the law says that it must be recieved (ie not what the BBC states) within 14 days then it all sounds pretty flippin simple to me. Feel a bit miffed that it went so far through the courts as that was some of my tax contribution being spent, and all on trying to win the unwinable.
Well contested and well won
The CC judge decided it didn't matter what method of delivery was used - which was plain wrong.
Derek Smith said:
stuff
OK, i'll fill in some gaps...In the initial trial in the Mags Court, the DJ decided not to accept the evidence of my postman and myself. I did get the postman to sign a statement a couple of days after Day 16 so the date and events would not be forgotten. Obviously, as an LIP, my cross examining skills were not as good as the CPS, and the DJ went with the CPS.
At my appeal in the CC, i was expecting a retrial, i.e. to re cross examine my postman. I had taken advice on how to cross examine, i had practiced at home, and was up to the challenge. However, before the trial, CPS counsel pulled me to one side, and told me that it's always good if both sides can agree as much as possible before going into court.
He believed that i was wrong in law. He believed there was no distinction between recorded delivery, special delivery and 1st class post. He was so convinced he was going to beat me in law (as opposed to the facts) that he proposed that if i agreed the NIP was sent day 5 (a fact i never disputed), he would agree it arrived day 16 (he honestly believed it was late). This would, he said, reduce my costs following his success in court.
So we sent the witnesses home, and we went into court. The facts were agreed, and we asked the judge to rule on law. The CC judge sided with him. I and my team knew they were wrong (and so is Archibold's).
At the High Court we were proven right.
Lord Justice Elias, sitting with Mr Justice Openshaw ... said that ... Had it been sent recorded delivery or by registered mail, the notice of intended prosecution would have been considered "served" in time - but not by standard first class post.
Lord Justice Elias ... rejected arguments supported by lower courts that so long as prosecution warning notices were posted within 14 days - so that in ordinary circumstances they would arrive in time - they were deemed to have been properly served.
Edited by peterguk M500 on Saturday 31st October 10:00
8 pages of great debate here with no insults and no toys out of prams. As PH should be.
I'd like to answer a few comments..
To those who see "i have got away with it". IMHO the charge is only part of it. Due process must be followed. In most cases "technicalities" are not technicalities at all - they are breaches, accidental or deliberate, of due process and all those involved, on both sides of the court, have to abide.
My licence was clean and i pursued this as a matter of principle. FFS, 3 points would add nothing to my insurance. The conviction would have changed my life by exactly zero. It has cost me more than the £60 i could have paid, but i am obviously happy with the outcome.
One point which many may not be aware of: Many court clerks and judges refer to Archbold’s Criminal Practice for advice and guidance. The CC judge in my case did exactly that.
We were able to show that the relevant parts of Archbold’s Criminal Practice is incorrect, and in time this will be corrected preventing further injustices occuring in the future.
In terms of the benefit to others, my last point is the most important.
I'd like to answer a few comments..
To those who see "i have got away with it". IMHO the charge is only part of it. Due process must be followed. In most cases "technicalities" are not technicalities at all - they are breaches, accidental or deliberate, of due process and all those involved, on both sides of the court, have to abide.
My licence was clean and i pursued this as a matter of principle. FFS, 3 points would add nothing to my insurance. The conviction would have changed my life by exactly zero. It has cost me more than the £60 i could have paid, but i am obviously happy with the outcome.
One point which many may not be aware of: Many court clerks and judges refer to Archbold’s Criminal Practice for advice and guidance. The CC judge in my case did exactly that.
We were able to show that the relevant parts of Archbold’s Criminal Practice is incorrect, and in time this will be corrected preventing further injustices occuring in the future.
In terms of the benefit to others, my last point is the most important.
Edited by peterguk M500 on Saturday 31st October 14:34
Puff the magic.. said:
Indeed it does need to be followed...as does the law on vehicle speed eh?
I agree with you, but I have never admitted nor denied contravening any law regarding speeding.I returned the S.172 admitting i was the driver at the time, and completetd the NIP, sending both back within the time limits, thereby abiding by due process. They didn't.
Vron said:
Were you caught before Junction 3 on the m180 by the van that parks on the perch?.
Sounds about right. They were hidden by a bridge support. Saturday morning, 8AM, bright sun, and i was all alone on the motorway tucked away in the inside lane.Edited by peterguk M500 on Saturday 31st October 22:09
http://business.timesonline.co.uk/tol/business/law...
According to official figures, 1.46m speeding tickets were issued in England and Wales during 2007, the last year for which figures are available. The typical penalty is £60, suggesting the fines raised at least £87m that year. The backlog of letters in this year’s strikes has reached 50m, suggesting thousands of letters could be delayed beyond 14 days.
Captain Gatso, campaigns director of Motorists Against Detection, who works using only his pseudonym, said: “Police and councils will be furious with this decision. It leaves the onus on the authorities to ensure [notices] get there in 14 days — motorists can simply argue it didn’t arrive on time. This is a volcano that could destroy the entire system.”
Chris Phillips, an analyst at Post-Switch, a firm that helps businesses sign up with Royal Mail’s rivals, said: “This is a live and serious issue for the police. We have already helped one police authority in the north which sends out 40,000 penalty notices a year sign up with one of Royal Mail’s competitors. We have had interest from other police forces in recent days.”
According to official figures, 1.46m speeding tickets were issued in England and Wales during 2007, the last year for which figures are available. The typical penalty is £60, suggesting the fines raised at least £87m that year. The backlog of letters in this year’s strikes has reached 50m, suggesting thousands of letters could be delayed beyond 14 days.
Captain Gatso, campaigns director of Motorists Against Detection, who works using only his pseudonym, said: “Police and councils will be furious with this decision. It leaves the onus on the authorities to ensure [notices] get there in 14 days — motorists can simply argue it didn’t arrive on time. This is a volcano that could destroy the entire system.”
Chris Phillips, an analyst at Post-Switch, a firm that helps businesses sign up with Royal Mail’s rivals, said: “This is a live and serious issue for the police. We have already helped one police authority in the north which sends out 40,000 penalty notices a year sign up with one of Royal Mail’s competitors. We have had interest from other police forces in recent days.”
Edited by peterguk M500 on Saturday 31st October 22:07
ypauly said:
How do we know the OP committed the offence in question as his post and the articles connected do not state who was driving?
I have never admitted nor denied contravening any law regarding speeding.I returned the S.172 admitting i was the driver at the time, and completetd the NIP - both legal requirements.
vonhosen said:
Read the OP's own posts on this.
The CPS accepted quite readily it arrived on day 16, but they believed this was of no consequence as it had been posted on day 5 (which they regarded as in good time to arrive within the ordinary course of the post).
Almost...The CPS accepted quite readily it arrived on day 16, but they believed this was of no consequence as it had been posted on day 5 (which they regarded as in good time to arrive within the ordinary course of the post).
They belived the method of posting was of no consequence i.e. the irrebuttable presumption of delivery enjoyed by Recorded and Special Delivery also extended to 1st class post.
It was this point we disputed, and even the CC judge got it wrong because Archbold’s Criminal Practice was wrong.
oldsoak said:
Here we have a case where the NIP was sent out in good time but the OP produced evidence to say it had arrived outside of the 14 day period.
In the past such things were accepted by the courts as long as the notice was SENT out within the 14 days and it could be reasonably expected to be delivered within that time frame all was well.
I respectfully remind you there is a rebuttable presumption of delivery where 1st class post is used.In the past such things were accepted by the courts as long as the notice was SENT out within the 14 days and it could be reasonably expected to be delivered within that time frame all was well.
S1(3) RTOA 1988
S.1(3) provides that subsection 1 will be deemed to have been complied with “unless the contrary is proved”. It is the interpretation of section 1(3) that was the key issue in this appeal.
Even after i rebutted (proved the contrary) the presumption of delivery they were still of the opinion that method of service was irrelevant.
odyssey2200 said:
vonhosen said:
.
As I said I've received 172's, sent them back & not been prosecuted. So receiving a 172 does not mean prosecution will take place
As I said I've received 172's, sent them back & not been prosecuted. So receiving a 172 does not mean prosecution will take place
Von
You are the only person I know that has recieved a NIP and NOT had it taken further.
Care to tell us how you achieve this?
Edited by peterguk M500 on Monday 2nd November 20:16
NWTony said:
GreenV8S said:
vonhosen said:
They are my freedoms too. I don't feel too burdened or imposed upon by it all though.
I see 172 as necessary piece of legislation. The ECHR seem to agree with me.
I see it as necessary too. I'd hate to think that drivers could act with impunity just because they're in a car. What I do feel burdened and imposed upon by though, is the increasingly widespread and harsh penalisation of drivers for exceeding the speed limit (where it's safe to do so). And it seems to me that this is what S172 is mainly used for at the moment.I see 172 as necessary piece of legislation. The ECHR seem to agree with me.
(1) This section applies—
(a) to any offence under the preceding provisions of this Act except—
(i) an offence under Part V, or
(ii) an offence under section 13, 16, 51(2), 61(4), 67(9), 68(4), 96 or 117,
and to an offence under section 178 of this Act,
(b) to any offence under sections 25, 26, 27 and 45 of the [1988 c. 53.] Road Traffic Offenders Act 1988, and
(c) to any offence against any other enactment relating to the use of vehicles on roads.
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