Scottish speeding offence help needed please

[southpaw]

I've tried to do this so far with just background reading from here but need advice off you guys now.

Background first: My mum got a letter on the 13th of April from Fife Police saying they had sent an NIP on the 21st of March, about a speeding offence on the 18th of March. However, and I'm 100% honest about this, my mum never got the NIP. I drafted a response stating we hadn't received it and under the RTA 1988 the 14 day rule applies and asked for photographic evidence.

Fife replied again on the 19th April with photographic evidence (shows driver clearly as was a scamera van), stating that as the NIP was sent within 14 days they had served their legal requirement and so were still able to prosecute etc and they were sure the equiptment was accurate etc etc. I wrote another letter for my mum, again quoting the RTA stating that the NIP wasn't sent by recorded delivery service and so had time expired, and there was no valid reason for it arriving late as the car wasn't borrowed/hired etc, and requested proof of posting. At this point a signed S172 was also returned.

Yesterday Fife replied again, with a COFP and a letter stating they would not provide proof of posting unless at the 'behest of the Procurator Fiscal in the event of a trial taking place'. The Partnership is also satisfied that it met the statuatory obligation by posting the original NIP within the 14 day timescale.

Now: So, what to do? Should my mum go to court, and if so what are the chances she will win the case? Obviously there is no way we can prove that the original NIP wasn't received, and as far as I understand proff of posting isn't proof of delivery. What would be the maximum penalty possible if the court ruled in favour of Fife Partnership?

Is there anything we can do to help with the case? I've ensured she's replied quickly to all the letters they have subsequently sent, and could we get a letter from ehr boss to say she always replies to things quickly and is organised etc, would stuff like that help at all? Any advice would be much appreciated guys, thanks

[NugentS]

The scammers are doing what all lieing thieving scamming bastards do.

Lie a lot

All they want is the money

If the NIP wasn't received then it wasn't served and in theory a witness saying that under oath (assuming the witness is of good character) is sufficient to rebut the presumption of service. It does however involve going to court

Sean

[Dwight VanDriver]

The crux of this is that was or was not the NOIP served in accordance with the law?

The venue for a decision on this argument will be at Court through a Not Guilty plea and your submission that it was not received in time. The ball then goes to the other court (PF) who will have to show that it was lawfully served.

The Magistrates will then pronounce.

Just who is the most convincing is in the lap of the Gods and will win the day.

dvd

[southpaw]

DVD, could you define lawfully served? I assume it was posted 1st class, although this isn't in accordance with the RTA as it says it needs to be sent by recorded delivery service. What kind of evidence will Fife have to show its posted (if any) and would this prove it was served if they just have proof of posting 1st class?

[Dwight VanDriver]

Road Traffic Offenders Act 1988 (as amended) deals with NOIP and states that:

a person shall not be convicted of an offence to which this section applies unless within fourteen days of the commission of the offence a notice of the intended prosecution specifying the nature of the alleged offence and the time and place where it is alleged to have been committed, was served (sub sec 1)

on him or

on the person, if any, registered as the keeper of the vehicle at the time of the commission of the offence.

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. (1)(c). First class post was added by another Act later. Second class is NOT ALLOWED.

The following will not apply as you imply other than Reg/Rec Del was involved:
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.

But:

The requirement of subsection (1) above shall in every case be deemed to have been complied with unless and UNTIL THE CONTRAY IS PROVED.

This will mean the intended recepient giving evidence on oath of non receipt.

Whilst not privy to Scottish Court procedure they may well follow that which is adopted by English Courts in that if service disputed by defendant then they may call the person who posted the document to give evidence on oath that he posted in such time that the NOIP would be received in the ordinary course of the post before the end of 15 days from the offence (date of offence not to be taken into account for the 14 days) or rely of what is know as a Certificate of Service, a signed documents that on such and such a time and date said NOIP was posted.

dvd

[crmcatee]

You've got to prove that you didn't receive it and they've got to prove that you did recieve it.

You can only do this by standing up in court and saying that you did not receive it. How they will prove that you did is beyond me.



Did you have any other mail problems about that time ?

[southpaw]

crmcatee said:

Did you have any other mail problems about that time ?

Not to my knowledge, and all their subsequent letters have been received within a couple of days of them being posted. But then again how do you know if something doesn't turn up?

DVD, thanks, so lets say they show that it was posted within 14 days by first class post by calling the person who posted it, and the judge rules in favour of Fife Police, whats the likely punishment for my mum?

[crmcatee]

I had the same problem only months afterwards I found that my credit card statement for that month was also missing.

Unfortunately for the scammers it never came showing that in the court before their case got beaten.

[Dwight VanDriver]

Max: £1000 fine, 3 -6 points, discretionary disqualification.

Add on Prosecution costs, around 30 -60 notes and (think it also applies to Jockland) the £15 victim support donation.

Check your local papers and see what the court is is handing out.

dvd

[justinp1]

Dwight VanDriver said:

Max: £1000 fine, 3 -6 points, discretionary disqualification.

Add on Prosecution costs, around 30 -60 notes and (think it also applies to Jockland) the £15 victim support donation.

Check your local papers and see what the court is is handing out.

dvd

That is correct, but what I think I should add is that unless the magistrates really believe that your mum is lying, then they cannot (legally) find her guilty.

That would mean that there is testimony that the letter did not arrive, and unless the CPS can provide something as evidence in the same quality as that then they will have no case. Of course, they do not have a witness who can state that your mum *did* receive the letter - they can only provide evidence that it was posted which does not prove it was delivered.

[Mad Moggie2]

crmcatee said:

You've got to prove that you didn't receive it and they've got to prove that you did recieve it.

You can only do this by standing up in court and saying that you did not receive it. How they will prove that you did is beyond me.



Did you have any other mail problems about that time ?

As Dwight says - depends who the judge decides to believe on the day and the odds are stacked against as you are up against an authority figure


However, pal of ours had to replace a licence after a house move. He informed DVLA of his changed address - paid up his £20 to them .. and waited.. and waited.

He checked his old address in case. It was not delivered there. He contacted Royal Mail as he had requested a "redirect service" to run for a few months as well. No joy. After 10 days - he contacted DVLA who told him "It must have got lost in the post - you know what Royal Mail is like :rolleyes"

They said it should arrive within the next couple of days. After 5 days .. he contacted DVLA to ask if they had sent it. They confirmed .. but it was still missing after 10 days. The fourth on arrived.

DVLA's excuse?

1. They cannot afford to send things out by registered/recorded special delivery.

2. All their mail goes into several sacks which are collected by Royal Mail

3. They send out thousands of licences/renewal notices and sundry stuff to "other agencies" each day and things will "get lost in the post as a result"

So.. it works in their favour when they want....

Good luck!


I would perhaps ask your neighbours if it was delivered to them by mistake and they binned it or forgot about it? If that can be the case - you can then prove your mum never actually received it - even though it was sent to your mum.

Just a thought.

[hutchingsp]

Of course it's entirely possible that they did send it, and that your mum didn't receive it.

You read all the time about the volume of post that goes missing.

It does however seem a pretty big loophole if all you need to do to get out of it is say "I never received the NIP" as unless they are sending them recorded/registered post they quite simply cannot prove that you did, end of story surely?!

You'd think they'd spend 40p considering they're bringing in £60 off the back of issuing the thing.

[herewego]

hutchingsp said:

Of course it's entirely possible that they did send it, and that your mum didn't receive it.

You read all the time about the volume of post that goes missing.

It does however seem a pretty big loophole if all you need to do to get out of it is say "I never received the NIP" as unless they are sending them recorded/registered post they quite simply cannot prove that you did, end of story surely?!

You'd think they'd spend 40p considering they're bringing in £60 off the back of issuing the thing.

I suppose they rely on most people being honest enough to put their hands up. Most people won’t lie in court. There was a recent case of someone’s mother being sent down for doing just that in a speeding case.

Edited by herewego on Sunday 6th May 14:04

[southpaw]

hutchingsp said:

You'd think they'd spend 40p considering they're bringing in £60 off the back of issuing the thing.

I don't see why they won't just add 40p to the fune to cover it if needed so no one has a case against them! The thing is if it had arrived in the 14 days she would have just accepted the COFP and been done with it, but I pointed out the 14 day rule and its obviously better for her if she doesn't have the 3 points and £60 fine.

Shes now thinking of just accepting the COFP to avoid all the hassle and as she doesn't think she'd win in court against an "authority" figure

Dwight VanDriver said:

Check your local papers and see what the court is is handing out.

It isn't local, we're in Newcastle and were just up in Fife for the day.

Edited by southpaw on Sunday 6th May 15:32

[jith]

Dwight VanDriver said:

Road Traffic Offenders Act 1988 (as amended) deals with NOIP and states that:

a person shall not be convicted of an offence to which this section applies unless within fourteen days of the commission of the offence a notice of the intended prosecution specifying the nature of the alleged offence and the time and place where it is alleged to have been committed, was served (sub sec 1)

on him or

on the person, if any, registered as the keeper of the vehicle at the time of the commission of the offence.

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. (1)(c). First class post was added by another Act later. Second class is NOT ALLOWED.

The following will not apply as you imply other than Reg/Rec Del was involved:
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.

But:

The requirement of subsection (1) above shall in every case be deemed to have been complied with unless and UNTIL THE CONTRAY IS PROVED.

This will mean the intended recepient giving evidence on oath of non receipt.

Whilst not privy to Scottish Court procedure they may well follow that which is adopted by English Courts in that if service disputed by defendant then they may call the person who posted the document to give evidence on oath that he posted in such time that the NOIP would be received in the ordinary course of the post before the end of 15 days from the offence (date of offence not to be taken into account for the 14 days) or rely of what is know as a Certificate of Service, a signed documents that on such and such a time and date said NOIP was posted.

dvd

Let me expand on this DVD and also give Southpaw the benefit of my Scottish experience.
The worst area for aggressive camera partnerships in Scotland is Fife; although quite frankly they pale into insignificance when compared to the English ones!
Ch.1 Para 3 is frequently utilised to abuse the accused and is a desperately bad law; but if properly understood, can of course be used as a wholly proper and effective defence.
The first thing that has to be said is that the fourteen day rule clearly exists so that the RK of a vehicle can recall, within a reasonable time period, who was driving their vehicle and then name that individual.
Anything that interferes or extends this time limit then becomes unacceptable in terms of recall: this clearly includes errors on the part of the partnerships, clerk's offices, the Fiscal, etc. These errors are NOT the problem or indeed the responsibilty of the accused, but are frequently laid at the door of the accused WELL after the fourteen day limit has expired.
In Scotland it is made much fairer by placing an obligation IN LAW on the part of the sender of the original NIP.
The Criminal Procedure(Scotland)Act '95 lays down the citation procedure in Ch.141 Para.3 :-

(3) Subject to subsection (4) below, the citation of the accused or a witness to a sitting or diet or adjourned sitting or diet as mentioned in subsection (1) above shall be effective if it is signed by the prosecutor and—

(a) in the case of the accused, sent by post in a registered envelope or through the recorded delivery service; and

(b) in the case of a witness, sent by ordinary post,

to the dwelling-house or place of business of the accused or witness or, if he has no known dwelling-house or place of business, to any other place in which he may be resident at the time.

Although it appears in S(b)that winesses can be cited by ordinary post, I have never seen this done; they are always sent recorded or hand delivered by BiB.

In conjunction with this what must be understood is that in the case of the '88 Act, and I will use your quote again DVD,

"The requirement of subsection (1) above shall in every case be deemed to have been complied with unless and UNTIL THE CONTRARY IS PROVED."

There is nothing in this section that requires the Accused to prove otherwise, the Act states merely that it has to be proved.
So in Southpaw's case, if it went as far as going before a court, (which incidentally, I have never found in Scotland, they ALWAYS bottle out), his mum would stand up and say that she did not receive the NIP, and that she had requested proof of posting but none had been forthcoming; the Fiscal would then have to produce a Post Office document with the correct address on it and someone belonging to Southpaws household's signature in order to proceed.
The obligation to prove posting INCLUDING receipt is that of the Crown's, NOT the accused.
Much fairer, and wholly provable.

You must stick to your guns Southpaw and do not offer any arguments or accept intimidation from the partnership or the police.
Simply state that the document was NOT delivered, you have no knowledge of an offence, and they are now outside the fourteen days and cannot proceed by law.
The last case I did in Fife resulted in me complaining to a senior officer about the conduct of the officer badgering, and I mean badgering, the accused.
This individual had no knowledge of the regs regarding the fourteen day rule and thought he could intimidate this driver into an admission.
After the complaint the matter was dropped.
Why do they go to so much trouble to investigate and attempt prosecution when they are so clearly wrong? I have great trouble understanding this.

[bus_ter]

Did you get away with just 3 points?

[southpaw]

I'm guessing that was aimed at me, and this was only posted on friday so nothings happened yet