Mum got an NIP, 40 in a 30 but the letter is LATE
Discussion
catso said:
WhereamI said:
It would hardly be credible to have a system where simply claiming that you didn't get the piece of paper for a few days lets you off the offence.
So how late can it arrive and still be acceptable? a week, a month, a year, ten years? - there has to be a cut-off point and the lawmakers have decided that is 14 days. They make the rules, rules that we are supposed to follow and so should they.WhereamI said:
catso said:
WhereamI said:
It would hardly be credible to have a system where simply claiming that you didn't get the piece of paper for a few days lets you off the offence.
So how late can it arrive and still be acceptable? a week, a month, a year, ten years? - there has to be a cut-off point and the lawmakers have decided that is 14 days. They make the rules, rules that we are supposed to follow and so should they.catso said:
WhereamI said:
catso said:
WhereamI said:
It would hardly be credible to have a system where simply claiming that you didn't get the piece of paper for a few days lets you off the offence.
So how late can it arrive and still be acceptable? a week, a month, a year, ten years? - there has to be a cut-off point and the lawmakers have decided that is 14 days. They make the rules, rules that we are supposed to follow and so should they.catso said:
Then they should send them by recorded delivery for definitive proof of receipt.
and what would happen then would be folks denying the signature of receipt was their signature because the postie bunged it through the letterbox and signed his stock signature as 'proof' it was 'received'.The only sure-fire way is to hand deliver each and every one (as said earlier), because , should there be a hint of a way out of accepting responsibility people being people WILL find it.
WhereamI said:
blueg33 said:
Courts have already found that Service means delivery to the keepers address, NOT the day it was posted. See the Gidden case referenced at the beginning of the thread.
Gidden only won because the NIP was sent out on the last day possible and there was a postal strike on. So it wasn't reasonable to assume that it would be delivered in time. So long as its sent with a few days to spare and there are no special circumstances the Gidden precedent isn't going to get you anywhere."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."
The law established by Gidden is thus.
LJ Elias
There is no proper service if the applicant is able to demonstrate that the notice was not in fact served within the specified timescale... the wording of the legislation is, in my view, clear.
Where the Police elect to serve the NIP by first class post, so that it would arrive within the 14 days and the defendant is able to demonstrate that it didn't, in fact, arrive in time, then the NIP is not served in time and the defendant cannot be convicted.
The solution is simple for the Police. Send the NIP by recorded or registered post in time and even if the defendant can demonstrate in fact it was not delivered in time - even if the NIP is returned undelivered - the NIP is still deemed to be served in time.
Edited by Zeeky on Wednesday 16th May 22:32
oldsoak said:
catso said:
Then they should send them by recorded delivery for definitive proof of receipt.
and what would happen then would be folks denying the signature of receipt was their signature because the postie bunged it through the letterbox and signed his stock signature as 'proof' it was 'received'.The only sure-fire way is to hand deliver each and every one (as said earlier), because , should there be a hint of a way out of accepting responsibility people being people WILL find it.
Zeeky said:
WhereamI said:
blueg33 said:
Courts have already found that Service means delivery to the keepers address, NOT the day it was posted. See the Gidden case referenced at the beginning of the thread.
Gidden only won because the NIP was sent out on the last day possible and there was a postal strike on. So it wasn't reasonable to assume that it would be delivered in time. So long as its sent with a few days to spare and there are no special circumstances the Gidden precedent isn't going to get you anywhere."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."
The law established by Gidden is thus.
LJ Elias
There is no proper service if the applicant is able to demonstrate that the notice was not in fact served within the specified timescale... the wording of the legislation is, in my view, clear.
Where the Police elect to serve the NIP by first class post, so that it would arrive within the 14 days and the defendant is able to demonstrate that it didn't, in fact, arrive, then the NIP is not served in time and the defendant cannot be convicted.
The solution is simple for the Police. Send the NIP by recorded or registered post in time and even if the defendant can demonstrate in fact it was not delivered in time - even if the NIP is returned undelivered - the NIP is still deemed to be served in time.
The defendant has to convince the court that the notice was not delivered until after the relevant period. If she can, by appearing in the court and giving evidence such as there may be, or by providing such other evidence as there may be, to convince the court, the court may dismiss the charges under the precedent of Gidden
If not then I see no other defence.
Therefore any corroborating evidence such as witnesses, or the envelope postmark are critical.
This cannot be easy to achieve or there would be countless such defences. Since there are not, the burden of proof required in this case clearly extends beyond the 'I did not get it' approach. Good luck to the defendant.
Zeeky said:
Where the Police elect to serve the NIP by first class post, so that it would arrive within the 14 days and the defendant is able to demonstrate that it didn't, in fact, arrive in time, then the NIP is not served in time and the defendant cannot be convicted.
The solution is simple for the Police. Send the NIP by recorded or registered post in time and even if the defendant can demonstrate in fact it was not delivered in time - even if the NIP is returned undelivered - the NIP is still deemed to be served in time.
No, the solution for the police is simple, continue doing what they are doing and send it by post, the burdon of proof is on the defendant to 'demonstrate that it didn't, in fact, arrive in time'. In other words unless they have witnesses or some extenuating circumstances the fact that it was posted in time means that it is deemed to have got there in time. Gidden had the fact that there was a postal strike to show that it wouldn't have arrived on time.The solution is simple for the Police. Send the NIP by recorded or registered post in time and even if the defendant can demonstrate in fact it was not delivered in time - even if the NIP is returned undelivered - the NIP is still deemed to be served in time.
WhereamI said:
catso said:
Then they should send them by recorded delivery for definitive proof of receipt.
As above, the don't need to send it by recorded delivery, first class post is deemed to be good enough.WhereamI said:
catso said:
Then they should send them by recorded delivery for definitive proof of receipt.
As above, the don't need to send it by recorded delivery, first class post is deemed to be good enough.Apache said:
WhereamI said:
catso said:
Then they should send them by recorded delivery for definitive proof of receipt.
As above, the don't need to send it by recorded delivery, first class post is deemed to be good enough.WhereamI said:
No, the solution for the police is simple, continue doing what they are doing and send it by post, the burdon of proof is on the defendant to 'demonstrate that it didn't, in fact, arrive in time'. In other words unless they have witnesses or some extenuating circumstances the fact that it was posted in time means that it is deemed to have got there in time. Gidden had the fact that there was a postal strike to show that it wouldn't have arrived on time.
In Gidden the prosecution conceded that the NIP had in fact arrived late. They argued it did not matter. The High Court did not consider whether or not Gidden had demonstrated the NIP had arrived late.The Court did however state that the defendant needs to demonstrate in fact that the NIP was late. We know that when the defendant is required to prove his defence (rather than raise it and require the prosecution to disprove it) he needs to do so on the balance of probabilities.
Your interpretation of Gidden might be correct if the defendant is required to prove his defence 'beyond reasonable doubt'. It is probably correct to say that the CPS may not concede service was late unless they are convinced, 'beyond reasonable doubt' that it was late.
If that is the case they may choose to put the defendant to proof in court. It does not follow from Gidden that if they do so, the defendant must prove extenuating circumstances or have a witness. He only needs to prove his point on the balance of probabilities.
Of course, the more evidence the defendant has the more likely he is able to do this but a convincing statement from the defendant might be enough.
It is incorrect to use the facts in Gidden that led to the prosecution conceding that the NIP arrived late as a threshold for the standard of proof needed to convince the court of the same.
Ean218 said:
WhereamI said:
As above, the don't need to send it by recorded delivery, first class post is deemed to be good enough.
Yes, they do, first class is not adequate, in law it needs to be recorded to be irrebuttable.There is a point if law here to be tested. What circumstances constitute a reasonable certainly that the notice was delivered late. Gidden is silent on this.
I doubt the court will accept the uncorroborated word of the defendant. Otherwise surely, this would have been rumbled years ago as an excuse. Whether the defendant in this case can provide that defence to the satisfaction of the court remains to be seen.
But clearly, in the right circumstances, with adequate proof it would be a defence.
Does anyone know whether the provable, absence on holiday, of the defendant for example would constitute a defence and render the prosecution void? I rather doubt it but I do wonder?
Steffan said:
Clearly not the opinion of the prosecuting authority.
There is a point if law here to be tested. What circumstances constitute a reasonable certainly that the notice was delivered late. Gidden is silent on this.
I doubt the court will accept the uncorroborated word of the defendant. Otherwise surely, this would have been rumbled years ago as an excuse. Whether the defendant in this case can provide that defence to the satisfaction of the court remains to be seen.
But clearly, in the right circumstances, with adequate proof it would be a defence.
Does anyone know whether the provable, absence on holiday, of the defendant for example would constitute a defence and render the prosecution void? I rather doubt it but I do wonder?
Steffan,There is a point if law here to be tested. What circumstances constitute a reasonable certainly that the notice was delivered late. Gidden is silent on this.
I doubt the court will accept the uncorroborated word of the defendant. Otherwise surely, this would have been rumbled years ago as an excuse. Whether the defendant in this case can provide that defence to the satisfaction of the court remains to be seen.
But clearly, in the right circumstances, with adequate proof it would be a defence.
Does anyone know whether the provable, absence on holiday, of the defendant for example would constitute a defence and render the prosecution void? I rather doubt it but I do wonder?
I think you misunderstand the use of the word irrebuttable.
If the SCP use recorded delivery then service is complete and the accused has no escape clause.
If they use ordinary mail then, if it doesn't arrive and can be proved not to have arrived then it has not been served. How those levels of proof are arrived at is another matter, but irrelevant if sent recorded.
If this "loophole" was used more regularly and the courts accept the evidence then plan B would obviously just be to send the stuff out recorded in future.
Aren’t there a few clauses about ‘reasonableness’ and ‘justice must be served’.
Is a letter arriving after 20 days instead of 14 unreasonable?
All else being equal, has the 6 days delay changed her guild or innocence?
Have any factors changed that make the 6 day delay have an unintended further impact?
If there is a case to answer based on speeding should it be dismissed due to a 6 day delay in the mail?
My opinions are.
I would suggest that 3 weeks instead of 2 weeks is not an unreasonable delay.
If the mother would have accepted the NIP had it arrived within 14 days then it’s reasonable to say she should accept it after 20 days.
The short delay causes no additional benefit or loss to any party.
It’s not like she got a new job in the 6 day gap that required a clean licence!?
I base this on a situation where I have returned legal financial documents several weeks late and all fines and penalties were waived because (to quote a man from the inland review) ‘it’s only a bit late, it’s not a big problem’.
I say that excusing a bit of a delay in sending mail is excusable for all parties.
Is a letter arriving after 20 days instead of 14 unreasonable?
All else being equal, has the 6 days delay changed her guild or innocence?
Have any factors changed that make the 6 day delay have an unintended further impact?
If there is a case to answer based on speeding should it be dismissed due to a 6 day delay in the mail?
My opinions are.
I would suggest that 3 weeks instead of 2 weeks is not an unreasonable delay.
If the mother would have accepted the NIP had it arrived within 14 days then it’s reasonable to say she should accept it after 20 days.
The short delay causes no additional benefit or loss to any party.
It’s not like she got a new job in the 6 day gap that required a clean licence!?
I base this on a situation where I have returned legal financial documents several weeks late and all fines and penalties were waived because (to quote a man from the inland review) ‘it’s only a bit late, it’s not a big problem’.
I say that excusing a bit of a delay in sending mail is excusable for all parties.
Snowboy said:
Is a letter arriving after 20 days instead of 14 unreasonable?
I presume the time limit is based around it not being so long ago that you can't remember who was driving. However that fails anyway if the car is a company car etc as the NIP goes to them in the first place.My view is that if you can get out of a scamera penalty then go for it, but be careful what you wish for - if it starts to become prevalent then the law will just be changed and/or the penalty increased to cover the extra cost.
The court sometimes has the power to accept documents that have been served late as being served in time. The court does not have the power to do so with the service of NIPS.
If they are served late the defendant cannot be convicted even if no detriment is caused to him or his defence (if any) to the substance of the offence.
It is a technical procedural point. Similar to speeding. There is no scope to defend non-compliance on the basis that 'no harm was done'.
If they are served late the defendant cannot be convicted even if no detriment is caused to him or his defence (if any) to the substance of the offence.
It is a technical procedural point. Similar to speeding. There is no scope to defend non-compliance on the basis that 'no harm was done'.
Zeeky said:
It is a technical procedural point. Similar to speeding. There is no scope to defend non-compliance on the basis that 'no harm was done'.
I’m not sure about the comparison about ‘no harm was done’.I was saying that using a 6 day delay as a legal sticking point seems contrived and against the spirit of justice.
Let's assume that MUM received the letter on time.
But after she filled in the form she left it on the coffee table and forgot about it.
She then finally posted it so it arrived 6 days late.
I would think that most reasonable people would consider it particularly unfair if the DVLA (or whoever) gave her a massive fine and extra points.
Most people would probably request that they waive the extra penalty as it was “just 6 days and was a genuine mistake with no intention of deceit.”
I would further expect that the DVLA would waive the charges and everyone would be happy.
Gassing Station | Speed, Plod & the Law | Top of Page | What's New | My Stuff