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Fine from court, what can be done now?
Zwypl
post Tue, 1 Aug 2017 - 23:57
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From: Stoke Newington
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I cant scan the docs. Can I humble ask, please to try and help me with your kindness with the info available.

My brother in law, who has a foreign (not European or USA) driving license, got a NIP as he was the named driver for speeding 27 on a 20 mph road.

He pleaded guilty, paid the £100 fine but did not send his license in, as he believed that they don't need his foreign license.

He then got an automatic refund of his £100 and later a letter named "Single Justice Procedure Notice" on the offence of speeding.

He wrote to the court and pleaded guilty, but wrote as mitigation that he fully complied as he confirmed to the MET he is guilty and paid the fine, he only didn't send his license as he believed it is not necessary.

A short time letter he got a letter from the court, that he has to pay a fine. See attached.

Is there a procedure to write to the Court or appeal, or its tough..

This post has been edited by Zwypl: Wed, 2 Aug 2017 - 00:09
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post Tue, 1 Aug 2017 - 23:57
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nosferatu1001
post Wed, 2 Aug 2017 - 04:19
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Should have asked to be sentenced at the FP level, so you can ask that - as the reason for not taking up the CoFP was unrelated to the offence, an "admin" mistake - they reopen and sentence accordingly.
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The Rookie
post Wed, 2 Aug 2017 - 06:22
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As he didn't fully comply, then clearly he shouldn't be claiming he did!

He should ask the court to reopen the case in the interests of justice as they appear to have failed to follow guidance and applied the fixed penalty tarriff. Of course it's possible that the court took hedence of the guidance and decided not to apply it in this case, which they are quite at liberty to do.


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peterguk
post Wed, 2 Aug 2017 - 07:54
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If the conditions of the CoFP were not met, then should the court be considering fining at CoFP level, since there are no "admin" issues?


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Jlc
post Wed, 2 Aug 2017 - 08:40
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The latest wording is thus:

QUOTE
When sentencing in cases in which a penalty notice was available:
* the fact that the offender did not take advantage of the penalty (whether that was by requesting a
hearing or failing to pay within the specified timeframe) does not increase the seriousness of the
offence and must not be regarded as an aggravating factor. The appropriate sentence must be
determined in accordance with the sentencing principles set out above (including the amount of
any fine, which must take an offender’s financial circumstances into account), disregarding the
availability of the penalty;
* where a penalty notice could not be offered or taken up for reasons unconnected with the offence
itself, such as administrative difficulties outside the control of the offender, the starting point
should be a fine equivalent to the amount of the penalty and no order of costs should be
imposed. The offender should not be disadvantaged by the unavailability of the penalty notice in
these circumstances. A list of offences for which penalty notices are available, and the amount of
the penalty, is set out in Annex B.
11. Where an offender has had previous penalty notice(s), the fact that an offender has previously
been issued with a penalty notice does not increase the seriousness of the current offence and
must not be regarded as an aggravating factor. It may, however, properly influence the court’s
assessment of the offender’s suitability for a particular sentence, so long as it remains within the
limits established by the seriousness of the current offence.


The guidance mentions unconnected with the offence itself and only gives 'administrative difficulties' as a suggestion. To me, failing to follow the conditions of the offer are within the control of the offender. Foreign licence holders are usually told to supply a copy of their licence.

In the present case the magistrate probably wasn't prompted to consider a fixed penalty, so didn't on their own volition. The sentence can be appealed but 'in the interests of justice' is probably more pragmatic if they'll consider it under s142 Magistrates Courts Act:

QUOTE
The Clerk to the Justices
xxxx Magistrates Court

Dear Sir/Madam

On xxx I was convicted of an offence of speeding, fined £x and given x penalty points. I am writing to request that the case be re-opened under s142 Magistrates Courts Act as it is in the interests of justice to do so. The reason for this is that the court did not consider the guidance given in the Magistrates Courts Sentencing Guidelines on page 453. I was offered a Fixed Penalty Notice for the speeding offence but did <insert groveling reason>. This was an administrative reason unconnected with the offence, the circumstances covered by the guideline referred to above and therefore the starting point for consideration of sentence should have been the equivalent of the fixed penalty, not the guideline for speeding offence, as appears to have been the case.


...I'd expect them to politely decline though.

This post has been edited by Jlc: Wed, 2 Aug 2017 - 08:50


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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peterguk
post Wed, 2 Aug 2017 - 08:58
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Thanks JLC.


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Zwypl
post Thu, 3 Aug 2017 - 01:51
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QUOTE (Jlc @ Wed, 2 Aug 2017 - 09:40) *
The latest wording is thus:

QUOTE
When sentencing in cases in which a penalty notice was available:
* the fact that the offender did not take advantage of the penalty (whether that was by requesting a
hearing or failing to pay within the specified timeframe) does not increase the seriousness of the
offence and must not be regarded as an aggravating factor. The appropriate sentence must be
determined in accordance with the sentencing principles set out above (including the amount of
any fine, which must take an offender’s financial circumstances into account), disregarding the
availability of the penalty;
* where a penalty notice could not be offered or taken up for reasons unconnected with the offence
itself, such as administrative difficulties outside the control of the offender, the starting point
should be a fine equivalent to the amount of the penalty and no order of costs should be
imposed. The offender should not be disadvantaged by the unavailability of the penalty notice in
these circumstances. A list of offences for which penalty notices are available, and the amount of
the penalty, is set out in Annex B.
11. Where an offender has had previous penalty notice(s), the fact that an offender has previously
been issued with a penalty notice does not increase the seriousness of the current offence and
must not be regarded as an aggravating factor. It may, however, properly influence the court’s
assessment of the offender’s suitability for a particular sentence, so long as it remains within the
limits established by the seriousness of the current offence.


The guidance mentions unconnected with the offence itself and only gives 'administrative difficulties' as a suggestion. To me, failing to follow the conditions of the offer are within the control of the offender. Foreign licence holders are usually told to supply a copy of their licence.

In the present case the magistrate probably wasn't prompted to consider a fixed penalty, so didn't on their own volition. The sentence can be appealed but 'in the interests of justice' is probably more pragmatic if they'll consider it under s142 Magistrates Courts Act:

QUOTE
The Clerk to the Justices
xxxx Magistrates Court

Dear Sir/Madam

On xxx I was convicted of an offence of speeding, fined £x and given x penalty points. I am writing to request that the case be re-opened under s142 Magistrates Courts Act as it is in the interests of justice to do so. The reason for this is that the court did not consider the guidance given in the Magistrates Courts Sentencing Guidelines on page 453. I was offered a Fixed Penalty Notice for the speeding offence but did <insert groveling reason>. This was an administrative reason unconnected with the offence, the circumstances covered by the guideline referred to above and therefore the starting point for consideration of sentence should have been the equivalent of the fixed penalty, not the guideline for speeding offence, as appears to have been the case.


...I'd expect them to politely decline though.


THANK YOU VERY MUCH
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Zwypl
post Mon, 9 Oct 2017 - 01:09
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Group: Members
Posts: 474
Joined: 15 Jun 2011
From: Stoke Newington
Member No.: 47,527



Update

I have written to the court, as above.

After a few weeks they wrote to me that I need to write to:

The Clerk to the Justices
Lavender Hill Magistrates Court
176a Lavender Hill
Battersea
London Sw11 1JU

I did that by email, after five weeks, I chased again and finally got this reply and attachment (cut n pasted below)).

Should you wish to apply for a re opening you need to apply to the prosecution for their views in the 1st instance.

I am attaching a copy of the required letter for you to complete and forward to them.

They will then notify the court of their views


Should I now write the same long letter to the prosecution, they are not even interested?


Lavender Hill Magistrates’ Court


Lavender Hill Magistrates’ Court
176A Lavender hill
Battersea
SW11 1JU
T ____
F ___
E firstname.lastname@hmcts.gsi.gov.uk

www.justice.gov.uk

Deputy Justices’ Clerk
Andrew Nicholson






Dear Sir/Madam,

Case Number:
Heard on:
At:

Thank you for your communication dated

If you wish to apply to have this case re-opened, you must make a written application and send a copy to the court and the prosecution as soon as possible. The prosecutor in this case is:

South/North Prosecutions
Camera/CJU/FPN

Traffic Criminal Justice
Operational Command Unit
P.O. Box 510
DA15 0BQ

In the application, you must:

(a) Explain why, as appropriate, the conviction should be set aside, or the order varied or rescinded,
(b) Specify any variation of the order that you propose,
© Identify any witness that you wish to call, and any other proposed evidence,
(d) Say whether you waive legal professional privilege, giving any relevant name and date,
(e) If the application is late, explain why.

Not all of the above may apply in your case. If you are legally represented they will be able to explain what waiving legal professional privilege means.

When the court has received your application, you will be notified whether the application needs to be listed for a formal hearing.

Please note:

- the decision to re-open a case is a matter for the court and the outcome cannot be guaranteed
- until such time as your case is re-listed and a court has agreed to re-open the case, the conviction, sentence or other order recorded against you stands.

Yours faithfully,



This post has been edited by Zwypl: Mon, 9 Oct 2017 - 01:11
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