NIP more than 3 months late?, First NIP sent nearly 3.5 months after alleged offence Options

[rockingit]

Hello all, I got sent over here by one of your ex mods, as he and I are busy members over at electricians forum!

I've got a bit of an odd one (maybe) and would value some opinion on the technicalities :

I received a NIP a couple of days ago from Avon & Somerset (dated 28/9/12) for an alleged offence (62 in a 50 in my Transit) dated 19/06/12. Manual Detection.

So, knowing what I believe to be the general rules on this, I rang the Speed Enforcement Unit earlier today and basically suggested that they were having a laugh (not in that language, obviously) as 3.5 months was stretching the 14 day notice period somewhat. They replied that they would NORMALLY have 14 days but the information on the registered keeper (which I've been since 17/01/12) had been manually sent to them by the DVLA rather than electronically and therefore they have up to six months.

Is this true? And if so, how can it possibly ever be fairly regulated??

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[glasgow_bhoy]

Check your V5C and look for the doc referance date.

Have you moved house recently?

Has the V5 been back at DVLA for any reason recently?

Are you the registered keeper, or do you lease the van or something?

[Jlc]

Some confusion in timings in here... They have 6 months from the date of the offence to lay particulars with a court.

However, they have to notify the registered keeper within 14 days of the offence to secure that prosecution. Manual or Electronic retrieval is irrelevant. If this is the first NIP sent after 3.5 months then they are having a bubble! (Assuming the DVLA records where up to date at the given dates)

But the requirement to name the driver (s172) still remains even if the NIP was served outside the 14 day period. So, you still have to respond to that first...

On the face of it they shouldn't be able to prosecute for this.

[Jlc]

The 14 days is covered Section 1 RTOA 1988 - speeding is in the list of offences requiring it.

[Gan]

Did you get the name of the person you spoke to ?

When you return the form attach a letter to it that you have provided the legally required information but it cannot be acted upon because the NIP was not correctly served within 14 days.

Refer them to your conversation with the Speed Enforcement Unit and their admission that it was sent well after the 14 days even though your details with DVLA had been correct since January

Staple the letter to the form. Keep copies and get a receipt from the Post Office when it's returned.
If you return it toward the end of the 28 days, by the time they review it but send a COFP anyway, there's a chance the offence will time out.

[CuriousOrange]

However, they have to notify the registered keeper within 14 days of the offence to secure that prosecution. Manual or Electronic retrieval is irrelevant.

If you read S.2 after your link, it says

Failure to comply with the requirement of section 1(1) of this Act is not a bar to the conviction of the accused in a case where the court is satisfied that neither the name and address of the accused nor the name and address of the registered keeper, if any, could with reasonable diligence have been ascertained in time...for a notice to be served or sent in compliance with the requirement

Whilst the method of retrieval is irrelevant per se, the point is that if using reasonable diligence 'they' couldn't get the name and address of the RK in time to serve the notice within the required 14 days then 'they' don't have to.

Whether 'they' includes the DVLA - i.e. if the DVLA could have given the name and address of an RK to the police in time, yet don't, does that mean the name and address could have been ascertained in time for the purposes of S.2 or not? - I don't know.

The OP may have a case for late service, but I don't see that it's an automatic win. As said, in the first instance they need to ID the driver anyway.

To expand on my above point, the line obviously has to be drawn somewhere. If I don't update my details with the DVLA, I can't claim that my details could have been A.w.R.D. because I could have updated my details, I just didn't. So if the DVLA don't give my details to the police, how correct is it to claim that my details could have been A.w.R.D. because they could have given my details, they just didn't?

Does the reasonable diligence requirement of S.2. apply to only the police or to the combination of DVLA (an executive agency of a government department) and the police? I don't think it's a clear-cut argument unless it's already been decided in some case law.

I'd lastly just say that personally I think it ought to apply to both since they're part of the same state machine if nothing else, but that doesn't mean it couldn't be argued that it doesn't.

Even if it did, the OP would still need to know why the DVLA were slow in supplying the name and address. If it were for reasons that they manage to contend were outside of their control (e.g. computer system failure which meant having to dig out the records by hand?) then the 14-day argument would fall down on that.

[Jlc]

Hmmm, interesting... I think for all intents and purposes the 14 day (bar an accident) requirement is still valid. Is 3 months reasonable? Even snail-mail to the DVLA would still be possible within the 14 days...?

Let's see what others think...

[henrik777]

The reasonable diligence, if it applied to DVLA (don't think so), would not involve passing the information on but finding it. So as long as they could find it easily it wouldn't matter how they told the police. (irrelevant anyway as it don't apply)

Is it reasonable diligence for a cop/scammer to make an enquiry to dvla and wait 3 months for a reply ? I doubt it. A reasonably diligent thing to do after 2/3 days, knowing there is a 14 day deadline, would be to pick up the phone.

[CuriousOrange]

A reasonably diligent thing to do after 2/3 days, knowing there is a 14 day deadline, would be to pick up the phone

Thing is we don't know if they did do that or not.

Maybe they can't show that they couldn't have got the name and address with reasonable diligence, maybe they can't. At the moment we can't say because we don't know exactly what happened, so it's the OP's gamble.

Is 3 months reasonable?

Is it reasonable diligence for a cop/scammer to make an enquiry to dvla and wait 3 months for a reply ? I doubt it.

S.1 says you can't be prosecuted if the NIP is not served within 14 days, S.2 says you can if the name and address couldn't be ascertained with reasonable diligence in time to serve that NIP within 14 days. Rightly or wrongly, at the moment there's nothing legal to say that if they've got a valid reason for not serving it within the 14 days they can't take as long as they like.

[dawmdt]

Presumably the courts will hold the police/SCP to the same standards of "reasonable diligence" as they would somebody defending a s.172 offence?

[desktop_demon]

The SCP are having a larf.

If the DOCREF date on the relevant vehicle's V5C (log book) is before the alleged offence (eg some months) and the address on the V5C is correct then I think the OP should identify the driver at the time and remind the SCP ticket tubbie that the requirement to serve the NIP within 14 days is a statutory requirement that can only be ignored in specific circumstances, none of which seem to apply in the instant case. The DVLA seem to be able to get a name and address in seconds to a PPC whereas it takes two moths to get similar information to the police? Yeah the other one has bells on....

Unfortunately the SCP are often staffed with ignorant people who have cognitive difficulties and a spectacular lack of training or performance monitoring (its the cuts, y'know...). So I wouldn't advise wasting too much breath on them. The CPS on the other hand are supposed to know a "dead duck" when they see one.

EDIT: This would also seem to be a case of someone telling "porkies" to cover they unattractive arse. ..

This post has been edited by desktop_demon: Wed, 3 Oct 2012 - 13:04

[Jlc]

the requirement to serve the NIP within 14 days is a statutory requirement that can only be ignored in specific circumstances, none of which seem to apply in the instant case.

Accidents aside, what sort of specific circumstances are covered by Section 2(3a)? I too believe it doesn't cover this particular circumstances but it would interesting to know...? It does appear to be a 'catch all' as long as the court can be convinced...

This post has been edited by Jlc: Wed, 3 Oct 2012 - 14:01

[CuriousOrange]

There are no "specific circumstances". It's the same as with S172 - the circumstances vary case by case. What there is gets presented to the court and debated and ultimately the court decide based on all the evidence presented whether or not it was possible with reasonable diligence to ascertain the name and address in time (S.2)/identify the driver (S.172).

All the OP can do is reply to the S172 request and include a variation of the RAC letter. The SCP may write back with a "we've decided to let it drop this time but don't do it again" letter, or a "14-days doesn't apply in this case, here's a CoFP" (this is going to be too late for an SAC).

If that happens and the CoFP won't time out then the OP will be faced with the choice of paying it or ignoring it and seeing if they'll take him to court.

If they do take him to court, he then has to choose whether to cut his losses and plead guilty or to challenge it on the 14 day rule, gambling on them having no court-convincing argument as to why they can invoke S.2.

[Jlc]

Hmm, interesting. I somehow doubt that the SEU were aware of this particular clause when they were stating that 14 days didn't apply... I think they were trying it on and were thinking about the 6 months to prosecute rather than some obscure way around the 'error'.

Gan's advice in post #5 is still the way to go I think... I suspect they'll still issue the CoFP and play a game of 'chicken'!

[jimster]

Unfortunately the SCP are often staffed with ignorant people who have cognitive difficulties and a spectacular lack of training or performance monitoring

+1

Although it would help if the OP returned to answer the questions in post #2

[rockingit]

Check your V5C and look for the doc referance date.

Have you moved house recently?

Has the V5 been back at DVLA for any reason recently?

Are you the registered keeper, or do you lease the van or something?

Hi chaps, thanks for all the interest on this. To answer the Q's - basically no. It's been my name on the V5 since 17/01/12 when I acquired it (though see comment below), not moved address. It is on a lease deal, but I can't see how that would affect anything.

What MAY be relevant is that there was a slight delay in sorting out the V5 changeover as the counterpart didn't get filled in properly by the vendor/dealer, but that got resolved long before this, and I can still see no reason why the DVLA didn't respond, as claimed.

[Gan]

Could you explain "lease deal" ?

You say that your details are on the V5 but most of the apparently late NIP threads involve vehicles where the first NIP went to a lease company

[SatNavSam]

whereas it takes two moths to get similar information to the police? Yeah the other one has bells on....

Is this a new type of airmail?

[rockingit]

Could you explain "lease deal" ?

You say that your details are on the V5 but most of the apparently late NIP threads involve vehicles where the first NIP went to a lease company

Not that kind of lease! It's a just a standard lease-purchase arrangement, and I am definitely the registered keeper and received my half of the V5 at the time. But that was January.........

[bama]

check with the DVLA (in writing !) when the request was made (and how) and when the reply was sent (and how)

this does sound like a feck up (and an ar$e covering) by the SCP. but gather all evidence you can