NIP out of time?
Discussion
Southerner said:
snuffy said:
I had one years ago, and they will just try it on. I wrote back and stated it was out of time. Their reply was that it was not. My next response was that I had taken legal advice (which I had), and I re-interated that it was issued out of time. I then received a letter saying the matter would not be taken further.
That’s interesting. Is it legal for the police (or those employed by them and acting on their behalf) to lie in order to attempt to progress a legally invalid prosecution?speedking31 said:
Dave Finney said:
Can everyone check your post?
How many of your letters been date-stamped by the PO?
If not date-stamped and a NIP posted in time does not arrive within 14 days, how is it possible to prove when/if it arrived?
To summarise:
NIP must be "served" within 14 days.
Definition of "served" is "received at the address of the RK" (not necessarily received by the RK in person, they may be on holiday).
Proof of posting 1st class 2 working days before 14 days is accepted by the courts as proof of "served".
If late, it is the RK that has to prove it was late.
Is that correct?
Why would the authorities provide all the necessary information in an accessible and clear way to show that they shouldn't have bothered posting a NIP in the first place?How many of your letters been date-stamped by the PO?
If not date-stamped and a NIP posted in time does not arrive within 14 days, how is it possible to prove when/if it arrived?
To summarise:
NIP must be "served" within 14 days.
Definition of "served" is "received at the address of the RK" (not necessarily received by the RK in person, they may be on holiday).
Proof of posting 1st class 2 working days before 14 days is accepted by the courts as proof of "served".
If late, it is the RK that has to prove it was late.
Is that correct?
but I was raising 2 different points.
If a NIP posted in time does not arrive within 14 days, how is it possible to prove when/if it arrived?
And this is made even more difficult if the PO fails to date-stamp letters.
Dave Finney said:
If a NIP posted in time does not arrive within 14 days, how is it possible to prove when/if it arrived?
By offering evidence to that effect.In Beckham's case, the RK (Bentley) confirmed the date upon which the [out of time] NIP had been delivered.
In Peter Gidden's case, I think it was his postie who confirmed the same.
SS2. said:
Dave Finney said:
If a NIP posted in time does not arrive within 14 days, how is it possible to prove when/if it arrived?
By offering evidence to that effect.In Beckham's case, the RK (Bentley) confirmed the date upon which the [out of time] NIP had been delivered.
In Peter Gidden's case, I think it was his postie who confirmed the same.
Both Beckham and Gidden were special cases as they had evidence other than from the driver.
Suppose you get a NIP that was posted in time, but it actually arrived after 14 days,
and there is no evidence other than your word (no date stamp, no postal strike etc).
Will courts accept that it arrived late because you say so?
If they do, that would be a defence for all automated prosecutions,
but, if not, the courts would appear to have reversed the presumption of innocence!
Dave Finney said:
Will courts accept that it arrived late because you say so?
If they do, that would be a defence for all automated prosecutions,
but, if not, the courts would appear to have reversed the presumption of innocence!
Whether or not a NIP arrived late and what evidence is required to convince a court one way or the other of that fact has nothing at all to do with the presumption of innocence. If they do, that would be a defence for all automated prosecutions,
but, if not, the courts would appear to have reversed the presumption of innocence!
Cat
OddCat said:
So the OP needs proof that the letter was delivered outside the 14 day window.
How's he going to do that ?
Funnily enough, someone else asked that question earlier, but the OP didn't respond.How's he going to do that ?
All he's got to do though, is to put the letter back in the envelope that he was referring to in the original post. Job done!
rscott said:
The envelope is franked 20th of May
Sebring440 said:
OddCat said:
So the OP needs proof that the letter was delivered outside the 14 day window.
How's he going to do that ?
Funnily enough, someone else asked that question earlier, but the OP didn't respond.How's he going to do that ?
All he's got to do though, is to put the letter back in the envelope that he was referring to in the original post. Job done!
rscott said:
The envelope is franked 20th of May
Dave Finney said:
SS2. said:
Dave Finney said:
If a NIP posted in time does not arrive within 14 days, how is it possible to prove when/if it arrived?
By offering evidence to that effect.In Beckham's case, the RK (Bentley) confirmed the date upon which the [out of time] NIP had been delivered.
In Peter Gidden's case, I think it was his postie who confirmed the same.
Both Beckham and Gidden were special cases as they had evidence other than from the driver.
Suppose you get a NIP that was posted in time, but it actually arrived after 14 days,
and there is no evidence other than your word (no date stamp, no postal strike etc).
Will courts accept that it arrived late because you say so?
If they do, that would be a defence for all automated prosecutions,
but, if not, the courts would appear to have reversed the presumption of innocence!
Chatting to one of our irregular postmen last month he told me that some days they don't deliver to various parts of town as they are short staffed.
In theory, if your NIP was late and the local sorting office had proof there were no deliveries to your area, then that could count as evidence.
Sebring440 said:
OddCat said:
So the OP needs proof that the letter was delivered outside the 14 day window.
How's he going to do that ?
Funnily enough, someone else asked that question earlier, but the OP didn't respond.How's he going to do that ?
All he's got to do though, is to put the letter back in the envelope that he was referring to in the original post. Job done!
rscott said:
The envelope is franked 20th of May
EDIT: I may well be due a parrot here
OP here.
We've decided we can't prove late service. Nothing on the envelope and had about 5 or six similar sized white envelopes of mail, mainly junk, over the last 2 weeks, so postir wouldn't be able to definitively say when this one came.
So she's accepting her fate and will hopefully be doing another awareness course. She meets their criteria.
This is only the 3rd time she's been caught in 30 years of driving, so not too bad. She's quite proud of the first - clocked in a Mini 1000 at 85 in a 70 !
The other 2 were upper 30s in 30 limits in Suffolk, where the 30 limit extends way outside the residential areas and on a normal day, most traffic is moving above the limit.. usually the 35-40 brigade, who do the same speed on those roads, no matter whether it's a 30, 40 or 60...
We've decided we can't prove late service. Nothing on the envelope and had about 5 or six similar sized white envelopes of mail, mainly junk, over the last 2 weeks, so postir wouldn't be able to definitively say when this one came.
So she's accepting her fate and will hopefully be doing another awareness course. She meets their criteria.
This is only the 3rd time she's been caught in 30 years of driving, so not too bad. She's quite proud of the first - clocked in a Mini 1000 at 85 in a 70 !
The other 2 were upper 30s in 30 limits in Suffolk, where the 30 limit extends way outside the residential areas and on a normal day, most traffic is moving above the limit.. usually the 35-40 brigade, who do the same speed on those roads, no matter whether it's a 30, 40 or 60...
eccles said:
Over the course of the last year or so our mail deliveries have become very hit or miss. Sometimes we don't get any mail for two or three days, then a big pile arrive all at once.
Chatting to one of our irregular postmen last month he told me that some days they don't deliver to various parts of town as they are short staffed.
In theory, if your NIP was late and the local sorting office had proof there were no deliveries to your area, then that could count as evidence.
Yes, we've had similar.Chatting to one of our irregular postmen last month he told me that some days they don't deliver to various parts of town as they are short staffed.
In theory, if your NIP was late and the local sorting office had proof there were no deliveries to your area, then that could count as evidence.
Our postie was out on a Sunday, said they were short staffed and they were clearing the backlog.
But would you be able to get the PO to admit that the post was late in writing for a court to accept that?
In most late NIP cases:
The prosecution can only prove the date the NIP was sent, and that it therefore should have been delivered in time.
They don't have evidence that the PO did serve the NIP before the deadline,
and the person receiving the NIP has no evidence other than the fact that they know when it arrived.
So a court will either have to:
1. accept the only evidence they have, the date the person said the NIP was delivered,
or
2. rule that the NIP was served, despite no evidence that it was.
Dave Finney said:
But how do you "offer evidence"?
Both Beckham and Gidden were special cases as they had evidence other than from the driver.
Suppose you get a NIP that was posted in time, but it actually arrived after 14 days,
and there is no evidence other than your word (no date stamp, no postal strike etc).
Will courts accept that it arrived late because you say so?
If they do, that would be a defence for all automated prosecutions,
but, if not, the courts would appear to have reversed the presumption of innocence!
Not quite. Parliament made the relevant law and parliament decided that there is a (legal) presumption of good service. A legal presumption allows the court to assume a fact without hearing evidence of that fact. Both Beckham and Gidden were special cases as they had evidence other than from the driver.
Suppose you get a NIP that was posted in time, but it actually arrived after 14 days,
and there is no evidence other than your word (no date stamp, no postal strike etc).
Will courts accept that it arrived late because you say so?
If they do, that would be a defence for all automated prosecutions,
but, if not, the courts would appear to have reversed the presumption of innocence!
In s.172 cases involving 1st class post, there is what is sometimes called a reverse burden of proof. I.e. it is for the defendant to rebut the presumption of good service. As mentioned already, that’s a legal rather than an evidential burden. The defendant must prove late service on a balance of probabilities. It is not enough to simply raise some evidence of late service. That’s an evidential burden satisfied but not a legal (persuasive) burden.
Dave Finney said:
Will courts accept that it arrived late because you say so?
If they do, that would be a defence for all automated prosecutions,
but, if not, the courts would appear to have reversed the presumption of innocence!
The reverse burden of proof is compatible with the right to a fair trial if it is necessary and proportionate. In the first part of your second sentence you've identified why that that might be the case. If they do, that would be a defence for all automated prosecutions,
but, if not, the courts would appear to have reversed the presumption of innocence!
The presumption of innocence, in common with the right against self-incrimination, is not absolute.
Cat said:
Whether or not a NIP arrived late and what evidence is required to convince a court one way or the other of that fact has nothing at all to do with the presumption of innocence.
Cat
https://hudoc.echr.coe.int/eng#{%22itemid%22:[%220...Cat
Paragraph 28 gives a helpful explanation of the relationship.
Presumptions of fact or of law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does, however, require the Contracting States to remain within certain limits in this respect as regards criminal law. If, as the Commission would appear to consider (paragraph 64 of the report), paragraph 2 of Article 6 (art. 6-2) merely laid down a guarantee to be respected by the courts in the conduct of legal proceedings, its requirements would in practice overlap with the duty of impartiality imposed in paragraph 1 (art. 6-1). Above all, the national legislature would be free to strip the trial court of any genuine power of assessment and deprive the presumption of innocence of its substance, if the words "according to law" were construed exclusively with reference to domestic law. Such a situation could not be reconciled with the object and purpose of Article 6 (art. 6), which, by protecting the right to a fair trial and in particular the right to be presumed innocent, is intended to enshrine the fundamental principle of the rule of law
Dave Finney said:
Both Beckham and Gidden were special cases as they had evidence other than from the driver.
Gidden was a bit more special than that. His case did not eventually turn on whether or not his NIP had been served in time. It was accepted that it had not. Instead it turned on whether the "presumption of service" (of two working days) could be rebutted for a NIP sent by first class post. Peter Gidden was convicted of speeding in the Magistrates' Court and unsuccessfully appealed against his conviction in the Crown Court. He then decided to take his case to the High Court by way of a "Case Stated". The issue for that Court to decide was:
"Whether, upon a proper construction of section 1(1)(c), section 1A(c) and section 1(3) of the Road Traffic Offenders Act 1988 a Notice of Intended Prosecution should be regarded as having been properly served where the Notice was sent to the Defendant by first class ordinary post on a date that would normally lead to it being delivered within the 14 day time limit but where the Court is satisfied that it was actually delivered after the 14 day time limit."
Lord Justice Elias outlined the circumstances for the grounds of the appeal:
"The notice of intended prosecution had been sent to him by first class ordinary post in circumstances where he would ordinarily have been expected to receive it in 14 days, but in fact it was delivered 16 days after the commission of the offence, apparently as a result of delivery delays following a postal strike. The prosecution conceded that the delivery was late.
The High Court decided that the presumption of service for documents sent by either Recorded or Registered Delivery could not be rebutted (so proof of them being posted is good enough, whether they are delivered or not). However, a presumption of service for documents sent by ordinary first class post could be rebutted. Since it had been accepted that Mr Gidden's NIP had been served late, his appeal was allowed.
Lord Elias made this remark after allowing the appeal:
"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, provided by section 1, if they are to avoid the risk of late delivery. Alternatively, the remedy lies in the hands of Parliament by amending section 1(2) of the 1988 [Road Traffic Offenders] Act. It is not, however, for the courts to overcome the resulting inconvenience by distorting the clear language which Parliament has adopted."
The transcript of High Court appeal is here:
https://www.bailii.org/ew/cases/EWHC/Admin/2009/29...
agtlaw said:
Not quite. Parliament made the relevant law and parliament decided that there is a (legal) presumption of good service. A legal presumption allows the court to assume a fact without hearing evidence of that fact.
In s.172 cases involving 1st class post, there is what is sometimes called a reverse burden of proof. I.e. it is for the defendant to rebut the presumption of good service. As mentioned already, that’s a legal rather than an evidential burden. The defendant must prove late service on a balance of probabilities. It is not enough to simply raise some evidence of late service. That’s an evidential burden satisfied but not a legal (persuasive) burden.
Thank you. Yes thought that must be the case otherwise the mass prosecution system might not work.In s.172 cases involving 1st class post, there is what is sometimes called a reverse burden of proof. I.e. it is for the defendant to rebut the presumption of good service. As mentioned already, that’s a legal rather than an evidential burden. The defendant must prove late service on a balance of probabilities. It is not enough to simply raise some evidence of late service. That’s an evidential burden satisfied but not a legal (persuasive) burden.
It leads to the interesting situation where you can be reading a NIP that has just arrived and you know 2 things:
1. It is an absolute fact that the NIP arrived after 14 days and
2. The court has already decided you are lying if you say it arrived late.
So how can you "prove late service on a balance of probabilities"?
Would 1 or 2 other people in the house as witnesses be sufficient?
Could you run after postie, get their name and confirm they will testify they just delivered the NIP 2 minutes ago?
Or perhaps have CCTV inside your house pointed at the front door so the NIP is date-stamped on camera?
I'm going to invent the date-stamping letterbox. Letters inserted into the letterbox are stamped one-by-one with the date and time of arrival. This date is set by a GPS chip and cannot be user-overridden. Upgraded version stamps all contents with laser pinhole writing. Could be useful!
LunarOne said:
I'm going to invent the date-stamping letterbox. Letters inserted into the letterbox are stamped one-by-one with the date and time of arrival. This date is set by a GPS chip and cannot be user-overridden. Upgraded version stamps all contents with laser pinhole writing. Could be useful!
How much are you charging for it?LunarOne said:
I'm going to invent the date-stamping letterbox. Letters inserted into the letterbox are stamped one-by-one with the date and time of arrival. This date is set by a GPS chip and cannot be user-overridden. Upgraded version stamps all contents with laser pinhole writing. Could be useful!
Why not invent a stamp with a bar code, who knows what you could then monitor? Oh….Gassing Station | Speed, Plod & the Law | Top of Page | What's New | My Stuff