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14 day rule - NIPs
andy_foster
post Sat, 6 Jan 2018 - 18:33
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The recent 'day 15' threads have raised a couple of potential issues, which would probably be better suited to being discussed in a separate thread in the Flame Pit, rather than risking hijacking, or continuing a hijack of one or more of the case threads.

The first one, is the question of 'computation of time' - where statute allows a period of time for something to be done, it seems that in general, not only is the fist day 'day 0', but it does not need to be done until the day after the expiration of the prescribed period. Does this apply to the service of NIPs?

QUOTE (peterguk @ Sat, 6 Jan 2018 - 18:14) *
QUOTE (nosferatu1001 @ Sat, 6 Jan 2018 - 17:36) *
13 days is alwsys too late as 2 days are require d for delivery.

Even if it arrives on day 14?


If it is posted on day 13, under s. 7 Interpretation Act 1978 it will be deemed to have been served on day 15 (or later if weekends or bank holidays are involved). However, the requirements of s. 1 RTOA 1988 are deemed to have been complied with unless the contrary is proven.

In practice, the defence would need to raise the issue by pointing out that it was posted too late to be deemed to have been served in time, and thus reverse the reverse burden, leaving the prosecution needing to prove service.


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post Sat, 6 Jan 2018 - 18:33
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cp8759
post Sat, 6 Jan 2018 - 18:47
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QUOTE (andy_foster @ Sat, 6 Jan 2018 - 18:33) *
If it is posted on day 13, under s. 7 Interpretation Act 1978 it will be deemed to have been served on day 15 (or later if weekends or bank holidays are involved). However, the requirements of s. 1 RTOA 1988 are deemed to have been complied with unless the contrary is proven.

Section 7's deeming provision applies "unless the contrary intention appears", CrimPR 4.11 provides that:

"(2) Unless something different is shown, a document ... is
served—
...
(b) in the case of a document sent by first class post or by the equivalent of first class post, on
the second business day after the day on which it was posted or despatched
"

This post has been edited by cp8759: Sat, 6 Jan 2018 - 18:48


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
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andy_foster
post Sat, 6 Jan 2018 - 18:50
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We know that s. 7 applies to the service of NIPs. I was sat behind Mr Gidden when the judgment was made.


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cp8759
post Sat, 6 Jan 2018 - 19:04
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QUOTE (andy_foster @ Sat, 6 Jan 2018 - 18:50) *
We know that s. 7 applies to the service of NIPs. I was sat behind Mr Gidden when the judgment was made.

The Gidden judgment was made in 2009, when the Criminal Procedure Rules 2005 had not yet been replaced by the Criminal Procedure Rules 2015, and thus to my knowledge CrimPR 4.11 did not yet exist.


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southpaw82
post Sat, 6 Jan 2018 - 19:07
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QUOTE (andy_foster @ Sat, 6 Jan 2018 - 18:33) *
The first one, is the question of 'computation of time' - where statute allows a period of time for something to be done, it seems that in general, not only is the fist day 'day 0', but it does not need to be done until the day after the expiration of the prescribed period. Does this apply to the service of NIPs?

That’s the "clear days" provision, such as applies under r 2.8 CPR. I’m not aware of any general rule to that effect but if you can provide a source I’ll take a look. In relation to an NIP the day of the offence is excluded because of the common law rule, found variously in Goldsmiths' Co v West Metropolitan Railway Co [1904] 1 KB 1, Hare v Gocher [1962] 2 QB 641, and Trow v Coope Midlands [1967] 2 QB 899. I’m not so sure service could be effected on the day after the last day; the Road Traffic Offenders Act 1988 doesn’t provide for clear days.


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cp8759
post Sat, 6 Jan 2018 - 19:19
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QUOTE (cp8759 @ Sat, 6 Jan 2018 - 19:04) *
QUOTE (andy_foster @ Sat, 6 Jan 2018 - 18:50) *
We know that s. 7 applies to the service of NIPs. I was sat behind Mr Gidden when the judgment was made.

The Gidden judgment was made in 2009, when the Criminal Procedure Rules 2005 had not yet been replaced by the Criminal Procedure Rules 2015, and thus to my knowledge CrimPR 4.11 did not yet exist.

Having said that, it leads to the same conclusion, the "ordinary course of the post" would be 2 business days so if the defendant were to give evidence that the NIP arrived on day 15, it's unlikely the prosecution could rebut that.


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andy_foster
post Sat, 6 Jan 2018 - 19:37
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The narrow point being discussed is what if it was posted on day 13 but delivered on day 14. The defendant could not give evidence that it arrived on day 15 without committing perjury.

N.B. Those that have been on the forums for a while will be in no doubt about our views on committing perjury. Those who do not understand our views on committing perjury (or otherwise perverting the course of justice, conspiring to do so, etc.) twnd to be shown the door rather briskly.


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cp8759
post Sat, 6 Jan 2018 - 20:12
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QUOTE (andy_foster @ Sat, 6 Jan 2018 - 19:37) *
The narrow point being discussed is what if it was posted on day 13 but delivered on day 14. The defendant could not give evidence that it arrived on day 15 without committing perjury.

N.B. Those that have been on the forums for a while will be in no doubt about our views on committing perjury. Those who do not understand our views on committing perjury (or otherwise perverting the course of justice, conspiring to do so, etc.) twnd to be shown the door rather briskly.

If the NIP is served on day 14, the defendant can simply chose not to give evidence (as is his right), that still leaves it to the prosecution to "show something different" to service being effected on day 15. Anyone going for that tactic might be better off not attending and having a lawyer appear for him and make the point that the prosecution has failed to discharge the evidential burden (which would be the case, as they would have no evidence of when the NIP was actually received).


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southpaw82
post Sat, 6 Jan 2018 - 20:20
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Be interesting to see if the prosecution tried to use s 35 CJPOA 1994.


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andy_foster
post Sat, 6 Jan 2018 - 20:22
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The point is that the defence need to raise the issue - presumably by referencing the NIP adduced by the prosecution. Otherwise there is no prosecution burden to discharge.


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NewJudge
post Thu, 11 Jan 2018 - 14:36
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QUOTE (andy_foster @ Sat, 6 Jan 2018 - 20:22) *
The point is that the defence need to raise the issue -


OK. So, Defendant not in court but has a representative there instead (as suggested above).

D's Representative: "My client contends that the NIP was served outside the 14 days allowed and so the prosecution cannot proceed."

Prosecution: "Here is the NIP, dated D13"

D's Representative:"Quite. You can only rely on the presumption that it was served two days later, on D15. What evidence have you to prove that it was served earlier than that?"

Prosecution: "None"

The defendant does not have to say anything. It is for the prosecution to prove that the D15 presumption which they enjoy was, in fact bettered and they cannot do so. Or is that too simple?
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superSmiffy
post Thu, 11 Jan 2018 - 18:18
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There are several references in the threads to “first NIP” , “second NIP”etc.
There only needs to be one NIP, any subsequent ones are simply superfluous.
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southpaw82
post Thu, 11 Jan 2018 - 20:23
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QUOTE (superSmiffy @ Thu, 11 Jan 2018 - 18:18) *
There are several references in the threads to “first NIP” , “second NIP”etc.
There only needs to be one NIP, any subsequent ones are simply superfluous.

A message that is put out reasonably often. However, it is often just a convenient shorthand that ought not to be taken literally.


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