NIP - 14 days or not ?
Discussion
I just received a NIP ( 38 in a 30 ) 19 days after the offence. Now, it amazingly took 5 days by 1st class post to get to me, but I don't think I can use that as a defence. However, I believe that a NIP must be served so that in the normal course of the post you should get it within 14 days. Now, here's my question : The date of the NIP and the postmark on the enevelope is *exactly* 14 days after I was flashed ( flashed on the 27th of May, NIP issued on the 10th of June ). So, in the normal course of the post it would be impossible for me to receive it wihin 14 days, 15 days is the best they could hope for. I've spoken with the RAC legal people and they conclused that it has been issued within 14 days but they did not really sound that sure, infact they changed their mind on more that one occasion. Any legal experts care to lend me a hand and clarify the 14 day rule for me ?
Thanks
Adrian
Esprit Sport 350
Thanks
Adrian
Esprit Sport 350
adrianmugridge said:
I just received a NIP ( 38 in a 30 ) 19 days after the offence. Now, it amazingly took 5 days by 1st class post to get to me, but I don't think I can use that as a defence. However, I believe that a NIP must be served so that in the normal course of the post you should get it within 14 days. Now, here's my question : The date of the NIP and the postmark on the enevelope is *exactly* 14 days after I was flashed ( flashed on the 27th of May, NIP issued on the 10th of June ). So, in the normal course of the post it would be impossible for me to receive it wihin 14 days, 15 days is the best they could hope for. I've spoken with the RAC legal people and they conclused that it has been issued within 14 days but they did not really sound that sure, infact they changed their mind on more that one occasion. Any legal experts care to lend me a hand and clarify the 14 day rule for me ?
Thanks
Adrian
Esprit Sport 350
There have been a number of posts by authorities on here that clearly indicate that:
"It has to be posted with the expectation of arriving by day 14 'in the normal course of post'." The 14 days starts from the day after the offence (i.e. 15 days including offence). Delivery cannot be on a Sunday (never been a Sunday post), so if Sunday is the 14th day, delivery must be possible on the Saturday beforehand.
On that basis, a NIP postmarked 14 days after the offence (but including the date of offence) would, sadly, appear to be IN time.
But, IMNAL.
Streaky
>> Edited by streaky on Thursday 17th June 17:02
Fergus,
To claify : the date on the NIP is the 10th ( the same as the post mark ) so it can't have been issued before the 10th and if you dont include the day of the offence, that's 14 days. Given it must take at least 1 day to arrive, then I'm fairly certain it's been issued outside 14 days because it's impossible for me to have received it within 14 days. Do you agree ?
To claify : the date on the NIP is the 10th ( the same as the post mark ) so it can't have been issued before the 10th and if you dont include the day of the offence, that's 14 days. Given it must take at least 1 day to arrive, then I'm fairly certain it's been issued outside 14 days because it's impossible for me to have received it within 14 days. Do you agree ?
Streaky wrote :
"On that basis, a NIP postmarked 14 days after the offence (but including the date of offence) would, sadly, appear to be IN time."
But mine was postmarked 14 days after the offence *not including the date of the offence*. i.e. 15 days. So, in the normal course of the postal service I could not get it until 15 days the offence ( again, not including the day of the offence ).
Adrian
Esprit Sport 350
"On that basis, a NIP postmarked 14 days after the offence (but including the date of offence) would, sadly, appear to be IN time."
But mine was postmarked 14 days after the offence *not including the date of the offence*. i.e. 15 days. So, in the normal course of the postal service I could not get it until 15 days the offence ( again, not including the day of the offence ).
Adrian
Esprit Sport 350
I would think you have every chance of getting away with this, I think that the argument 'NOIP served out of time' will hold up.
If you do a search on this forum relating to this subject you should be able to find posts where Jeffrey Archer and DwightVanDriver have quoted case law that supports the rule.
If you do a search on this forum relating to this subject you should be able to find posts where Jeffrey Archer and DwightVanDriver have quoted case law that supports the rule.
Thanks Kev
I've had a look as you suggested and it seems that the NIP must be issued so that it's recieved within 14 days. As mine was issued exactly 14 days after the day of the offence I'm almost definatly sure now that they are out of time. Maybe DVD or JA could confirm that for me ?
Cheers
Adrian
www.adrianmugridge.co.uk
I've had a look as you suggested and it seems that the NIP must be issued so that it's recieved within 14 days. As mine was issued exactly 14 days after the day of the offence I'm almost definatly sure now that they are out of time. Maybe DVD or JA could confirm that for me ?
Cheers
Adrian
www.adrianmugridge.co.uk
Adrian,
First of all, you have not mentioned this, but the 14 days only applies to the first NIP in the chain, the one to the RK (although, in unusual circumstances, a non RK driver, if he gets the first one, must be served it in the 14 days).
With that proviso, and assuming that there is nothing unusual about the DVLA records (e.g. a recent change), you are solidly in the clear.
------------------------------------------------------
Nicholson v Tapp
(DC) Divisional Court
c.1972
Summary
Abstract: A notice of intended prosecution posted on the fourteenth day after the alleged offence does not comply with the provisions of the Road Traffic Act 1960 s. 241(2) (as amended). A notice of intended prosecution for an alleged offence of dangerous driving was posted to T by recorded delivery service on the fourteenth day after the incident in question.
Summary: Held, the notice did not comply with s. 241(2) of the Road Traffic Act 1960 (as amended). (R. v London County Quarter Sessions Appeals Committee Ex p. Rossi [1956] C.L.Y. considered).
Cases Cited
R. v London County Quarter Sessions Appeals Committee Ex p. Rossi, [1956] 1 Q.B. 682; [1956] 2 W.L.R. 800; [1956] 1 All E.R. 670; (1956) 120 J.P. 239; (1956) 100 S.J. 225 (CA)
Legislation Cited
As amended by Road Traffic Act 1962 s. 51
Road Traffic Act 1962
Road Traffic Act 1960 s. 241
END OF DOCUMENT
----------------------------------------------------
Also, The Interpretation Act 1978, Section 7.
7.-[References to service by post.]
Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expression "give" or "send" or any other expression is used) then, unless the contrary intention appears, 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.
Also, your NIP did not arrive until day 19.
That is also a defence, if you can prove it to the court's satisfaction. E.g. say, both you and your wife go into the box and testify under oath that it did not arrive until day 19, and that you made a contemporaneous note to that effect.
Whilst it is true that there is a presumption that, if it was posted in time, it was delivered on time; however it is a rebuttable presumption.
Road Traffic offenders Act 1988, Section 1.
1.(3) The requirement of subsection (1) above shall in every case be deemed to have been complied with unless and until the contrary is proved.
The same rebuttable presumption exists in The Interpretation Act, as above.
As far as the rebuttal is concerned, the prosecution may cite Groome v Driscoll (1969) to justify a NIP which was delivered out of time, but posted in time, as being validly served.
However, IIRC, Groome v Driscoll revolved around the phrase, "or was for any other reason not received by him."
In the current version of the RTOA 1988, Section 1, that phrase only exists in sub-section (2); i.e. where registered or recorded delivery service is used.
The new sub-section (1A) which allows first class post has no equivalent to "or was for any other reason not received by him," therefore, it is sub-section (3) (as above) which is applicable.
So, as I said at the start, IMO you are lead pipe solid.
First of all, you have not mentioned this, but the 14 days only applies to the first NIP in the chain, the one to the RK (although, in unusual circumstances, a non RK driver, if he gets the first one, must be served it in the 14 days).
With that proviso, and assuming that there is nothing unusual about the DVLA records (e.g. a recent change), you are solidly in the clear.
------------------------------------------------------
Nicholson v Tapp
(DC) Divisional Court
c.1972
Summary
Abstract: A notice of intended prosecution posted on the fourteenth day after the alleged offence does not comply with the provisions of the Road Traffic Act 1960 s. 241(2) (as amended). A notice of intended prosecution for an alleged offence of dangerous driving was posted to T by recorded delivery service on the fourteenth day after the incident in question.
Summary: Held, the notice did not comply with s. 241(2) of the Road Traffic Act 1960 (as amended). (R. v London County Quarter Sessions Appeals Committee Ex p. Rossi [1956] C.L.Y. considered).
Cases Cited
R. v London County Quarter Sessions Appeals Committee Ex p. Rossi, [1956] 1 Q.B. 682; [1956] 2 W.L.R. 800; [1956] 1 All E.R. 670; (1956) 120 J.P. 239; (1956) 100 S.J. 225 (CA)
Legislation Cited
As amended by Road Traffic Act 1962 s. 51
Road Traffic Act 1962
Road Traffic Act 1960 s. 241
END OF DOCUMENT
----------------------------------------------------
Also, The Interpretation Act 1978, Section 7.
7.-[References to service by post.]
Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expression "give" or "send" or any other expression is used) then, unless the contrary intention appears, 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.
Also, your NIP did not arrive until day 19.
That is also a defence, if you can prove it to the court's satisfaction. E.g. say, both you and your wife go into the box and testify under oath that it did not arrive until day 19, and that you made a contemporaneous note to that effect.
Whilst it is true that there is a presumption that, if it was posted in time, it was delivered on time; however it is a rebuttable presumption.
Road Traffic offenders Act 1988, Section 1.
1.(3) The requirement of subsection (1) above shall in every case be deemed to have been complied with unless and until the contrary is proved.
The same rebuttable presumption exists in The Interpretation Act, as above.
As far as the rebuttal is concerned, the prosecution may cite Groome v Driscoll (1969) to justify a NIP which was delivered out of time, but posted in time, as being validly served.
However, IIRC, Groome v Driscoll revolved around the phrase, "or was for any other reason not received by him."
In the current version of the RTOA 1988, Section 1, that phrase only exists in sub-section (2); i.e. where registered or recorded delivery service is used.
The new sub-section (1A) which allows first class post has no equivalent to "or was for any other reason not received by him," therefore, it is sub-section (3) (as above) which is applicable.
So, as I said at the start, IMO you are lead pipe solid.
JA / DVD
Thanks for your help, it's most kind. I've also spoken with a solicitor this morning who agrees with you all so I've written to plod today pointing out the error of his ways and requesting that the NIP be cancelled. I shall now just have to wait and see what they reply with.
Thanks again
Adrian
Thanks for your help, it's most kind. I've also spoken with a solicitor this morning who agrees with you all so I've written to plod today pointing out the error of his ways and requesting that the NIP be cancelled. I shall now just have to wait and see what they reply with.
Thanks again
Adrian
jeffreyarcher said:I suggest that the "contemporaneous note" was made by the posting at the head of this thread ... assuming it was made as stated - Streaky
[ ... ]
Also, your NIP did not arrive until day 19.
That is also a defence, if you can prove it to the court's satisfaction. E.g. say, both you and your wife go into the box and testify under oath that it did not arrive until day 19, and that you made a contemporaneous note to that effect.
PS - I was once extensively questioned by a "silk" on why I had headed a memorandum of a meeting, "Contemporaneous Note of Meeting" and timed and dated the same. I lost count of the number of times he ignored my explanation that it meant exactly what it said. Eventually I caught the judge's eye and he intervened to ask, "Mr XXX, are you being repetitious for a reason, or have you nothing else to ask?" The QC immediately asked a different (and pointless) question; then sat down
- SGassing Station | Speed, Plod & the Law | Top of Page | What's New | My Stuff