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DVLA disqualification while waiting for Stat Dec
adonis114
post Sat, 3 Oct 2020 - 13:38
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Dear Forum community members

Firstly thanks to the entire forum community and active advisors.

I have a familiar topic ( moved house updated license but miseed updating V5C ) but wanted help and advise.

Sep 21: Visited old rented house and received some shocking mail posts. Discovered court ordered 6 points and a GBP 811 fine for MS 90 offence. The date of court order was Sep 1. I had no clue what had happened as I dont recollect any offences and no other mails were there
In evening found this forum and free legal advice from a solicitor and found all about MS90, Stat Dec etc.

Sep 22-23: Corrected V5C. Reached out to court to request Stat Dec. First person was very friendly and informed they will set aside the sentence and next step will be for court to contact me and take my declaration. He asked me how do I plead and I said Not Guilty as I dont even know whays going on and never got letters for identity. I called up DVLA and the LCCC court collection agency for fines. DVLA said my license is clean and court hasnt reached them yet . LCCC gave me time till 7th Oct for Stat Dec and told me court will inform them of Stat Dec

Sep 25 : Court emailed me with Stat Dec form and SJP and asked me to send them ay earliest for an appointment. The SJP was an eyeopener. So SJP attachments indicated that Jan 12th I broke a red light and MetPolice issued a NIP on Jan 21st all addressed to my old house (letter I never received even in old posts handed over). Since I never responded I was charged with MS90 on 31st July. The SJP chargesheet indicated only 1 offence MS90 ( I understand from other posts in forum this is likely as timeout of 6months have passed so instwad of 2 charges they have charged me only with MS90 )


Sep 28 : Returned the Stat Dec Form and filled SJP indicating Guilty to charge as essentially I forgot to apply for V5C change and dont have any defence for a trial. However in guilty plea I explained the situation that I never received the letters and asked court for justice as it was honest mistake and ideally I should be charged and tried for the offence of red light.

Waiting for court to hear my Stat Dec and reopen the case but today I get a mail from DVLA that my license has been revoked based on Sep1 court order and I am a new driver ( as luck would have it I complete 2 years only on Sep 29)

Called DVLA and they said court has not informed them of any Stat Dec process and my ban is effective immediately as I have 6 points

At this stage I am totally angry over myself of missing an address update on V5C when I had updated DL but I need some advice from experienced folks here - I will be calling court on Monday and ask them to convey DVLA reg the Stat Dec process is underway and I am awaiting a date.
a) Do I still need to send my license to DVLA before the Stat Dec and case reopening ?
b) Is the ban legally effective if court is delayed on hearing Stat Dec ( Stat Dec is over phone due to Covid)
c) Assuming my Stat Dec is admitted and case reopened and my guilty plea admitted- can court in its power set aside the order and ask prosecutor to charge me on original offence rather than MS90 ?
d) If Stat Dec is admitted and guilty plea admitted - will court issue a fresh sentence? In that case the new sentence will be after 2 years so will my license ban be overturned but 6 points reinstated with 2/3 rd fine ?

Thanks for your time and help

This post has been edited by adonis114: Sat, 3 Oct 2020 - 13:48
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post Sat, 3 Oct 2020 - 13:38
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southpaw82
post Sun, 4 Oct 2020 - 16:00
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QUOTE (The Rookie @ Sun, 4 Oct 2020 - 15:35) *
QUOTE (adonis114 @ Sun, 4 Oct 2020 - 13:32) *
Which I didnt receive and I cant break a law for something I mever received.

Yes you can, case law (Whiteside) established you have to exercise reasonable diligence to make sure you get any notifications, (like keeping the keepers details up to date), unless the court accepts it wasn’t reasonable for you to do that (yeah, tha may be hard) you’ll be convicted as the law says.

Which bit of the case said that? Have you got a reference to the paragraphs?


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adonis114
post Sun, 4 Oct 2020 - 16:18
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Thanks @Rookie and also many thanks to @JLC and others

I understand that the defence of Not Guilty is shaky and in all honesty it is as it was all throughout my responsibility to update the address. I did contribute to the charge as I didnt update and hence I failed to respond. At same time I would plea for circumstances in my guilty plea as it was not my intention and it was a genuine miss. Finally hope for some leniency from judge before he pronounces the sentence - as truth is that I would have responded if I got the letters. I can see I have nowhere to go from a trial and not being guilty.

Thanks all. I will update how things go for benefit of all readers as it helped me as well reading other threads. Wish me luck and hope judge is lenient ... a very harsh lesson learnt for a one minute update of V5C ...I left it lying for 2 years

This post has been edited by adonis114: Sun, 4 Oct 2020 - 16:22
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Jlc
post Sun, 4 Oct 2020 - 16:52
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QUOTE (southpaw82 @ Sun, 4 Oct 2020 - 17:00) *
QUOTE (The Rookie @ Sun, 4 Oct 2020 - 15:35) *
QUOTE (adonis114 @ Sun, 4 Oct 2020 - 13:32) *
Which I didnt receive and I cant break a law for something I mever received.

Yes you can, case law (Whiteside) established you have to exercise reasonable diligence to make sure you get any notifications, (like keeping the keepers details up to date), unless the court accepts it wasn’t reasonable for you to do that (yeah, tha may be hard) you’ll be convicted as the law says.

Which bit of the case said that? Have you got a reference to the paragraphs?

28 (iii) says:

QUOTE
The defendant does not have a defence under section 172(7)(b) merely by virtue of the fact that he has no knowledge that the Notices were sent. However, in an appropriate case a defendant may be able to show in such circumstances that it was not reasonably practicable for him to have been aware of the Notice, in which case the defence will apply.


I think the OP would struggle to show it was not reasonably practicable?

QUOTE (adonis114 @ Sun, 4 Oct 2020 - 17:18) *
Wish me luck and hope judge is lenient ... a very harsh lesson learnt for a one minute update of V5C ...I left it lying for 2 years

Even a lenient Judge would likely endorse 6 points.

My point about pleading not guilty is not to defend the s172 charge itself but to give you an opportunity to speak with the prosecutor to see if they would consider the underlying charge (in exchange for dropping the s172). With a guilty plea there's an extremely unlikely that would happen.

This post has been edited by Jlc: Sun, 4 Oct 2020 - 16:53


--------------------
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, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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Logician
post Sun, 4 Oct 2020 - 17:13
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QUOTE (adonis114 @ Sun, 4 Oct 2020 - 17:18) *
At same time I would plea for circumstances in my guilty plea as it was not my intention and it was a genuine miss. Finally hope for some leniency from judge before he pronounces the sentence - as truth is that I would have responded if I got the letters.


The Whiteside case established that mens rea is not an element in this offence, in other words your lack of any intention to commit the offence is not relevant. The first part of the judgement was " The offence created by section 172(3) does not require knowledge on the defendant's part that he is under an obligation to provide the specified information;"

It was said obiter " I accept [the prosecutor's] submission that if the appellant did not show due diligence in ensuring that the Notices were drawn to his attention, he would not be able to demonstrate that it was not reasonably practicable for him to give a response to those Notices." and I think in this case that equates to failing to show due diligence in ensuring that the address registered with the DVLA is kept up to date.

I am sorry but I do not see any basis for leniency.


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southpaw82
post Sun, 4 Oct 2020 - 17:32
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QUOTE (Jlc @ Sun, 4 Oct 2020 - 17:52) *
QUOTE (southpaw82 @ Sun, 4 Oct 2020 - 17:00) *
QUOTE (The Rookie @ Sun, 4 Oct 2020 - 15:35) *
QUOTE (adonis114 @ Sun, 4 Oct 2020 - 13:32) *
Which I didnt receive and I cant break a law for something I mever received.

Yes you can, case law (Whiteside) established you have to exercise reasonable diligence to make sure you get any notifications, (like keeping the keepers details up to date), unless the court accepts it wasn’t reasonable for you to do that (yeah, tha may be hard) you’ll be convicted as the law says.

Which bit of the case said that? Have you got a reference to the paragraphs?

28 (iii) says:

QUOTE
The defendant does not have a defence under section 172(7)(b) merely by virtue of the fact that he has no knowledge that the Notices were sent. However, in an appropriate case a defendant may be able to show in such circumstances that it was not reasonably practicable for him to have been aware of the Notice, in which case the defence will apply.


I think the OP would struggle to show it was not reasonably practicable?

The case is often misunderstood, I think. It didn’t lay down any rule that not being aware of a notice because an address had not been updated would result in a guilty verdict. What it did do was say that such a result would be open to the magistrates in such circumstances. However, it’s often cited as an absolute.

This post has been edited by southpaw82: Sun, 4 Oct 2020 - 17:32


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adonis114
post Sun, 4 Oct 2020 - 19:55
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QUOTE (southpaw82 @ Sun, 4 Oct 2020 - 18:32) *
QUOTE (Jlc @ Sun, 4 Oct 2020 - 17:52) *
QUOTE (southpaw82 @ Sun, 4 Oct 2020 - 17:00) *
QUOTE (The Rookie @ Sun, 4 Oct 2020 - 15:35) *
QUOTE (adonis114 @ Sun, 4 Oct 2020 - 13:32) *
Which I didnt receive and I cant break a law for something I mever received.

Yes you can, case law (Whiteside) established you have to exercise reasonable diligence to make sure you get any notifications, (like keeping the keepers details up to date), unless the court accepts it wasn’t reasonable for you to do that (yeah, tha may be hard) you’ll be convicted as the law says.

Which bit of the case said that? Have you got a reference to the paragraphs?

28 (iii) says:

QUOTE
The defendant does not have a defence under section 172(7)(b) merely by virtue of the fact that he has no knowledge that the Notices were sent. However, in an appropriate case a defendant may be able to show in such circumstances that it was not reasonably practicable for him to have been aware of the Notice, in which case the defence will apply.


I think the OP would struggle to show it was not reasonably practicable?

The case is often misunderstood, I think. It didn’t lay down any rule that not being aware of a notice because an address had not been updated would result in a guilty verdict. What it did do was say that such a result would be open to the magistrates in such circumstances. However, it’s often cited as an absolute.


Well I have mentioned due to Covid I couldnt vist the old address physically and did that only in September when I cane to know about everything. So for sure accidentally I forgot
to update V5C but I did update Driving License and physically I couldnt visit to check on mails ( its actually true that I didnt venture out )
But all this I have explained in my guilty plea explaining the circumstances and accepting my responsibility of V5C address update mistake and requesting judge to pardon and resurrect the old case of Red Light rather than Failing to provide. Should it be in a Not Guilty plea instead ?

With court matters on phone how do I even talk to prosecutor? In any case I am still waiting for Stat Dec to be taken on phone. I will clearly explain to the judge all the facts and let him award the final sentence... I always hope that justice does consider circumstances...
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NewJudge
post Sun, 4 Oct 2020 - 20:25
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QUOTE (adonis114 @ Sun, 4 Oct 2020 - 20:55) *
But all this I have explained in my guilty plea explaining the circumstances and accepting my responsibility of V5C address update mistake and requesting judge to pardon and resurrect the old case of Red Light rather than Failing to provide. Should it be in a Not Guilty plea instead ?

With court matters on phone how do I even talk to prosecutor? In any case I am still waiting for Stat Dec to be taken on phone. I will clearly explain to the judge all the facts and let him award the final sentence... I always hope that justice does consider circumstances...


The judge (or more likely the Magistrates) have no power to drop the "Fail to Supply" (FtS) charge and reinstate the original charge. That can only be done by the prosecution.

I don't believe you have much of a defence to the FtS charge but it seems that your only course of action, other than simply pleading guilty to it, would be to defend it. There is an alternative which may work. Andy Foster has explained that to raise that charge "out of time" (beyond six months) is unlawful. However, I have seen it done by a sympathetic prosecutor and an agreeable court. You could try pleading Not Guilty, attending on the day of your hearing and approaching the prosecutor.

As an aside, six points as a "New Driver" does not see you disqualified. It sees your licence revoked and you having to take your test again. But you can apply for a new licence as soon as the revocation takes place and begin driving (as a provisional licence holder) as soon as you have it. The revocation is not immediate but is carried out by the DVLA when they learn of your points. The court has no discretion over this.
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adonis114
post Fri, 20 Nov 2020 - 19:47
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QUOTE (The Rookie @ Sun, 4 Oct 2020 - 14:35) *
QUOTE (adonis114 @ Sun, 4 Oct 2020 - 13:32) *
Which I didnt receive and I cant break a law for something I mever received.

Yes you can, case law (Whiteside) established you have to exercise reasonable diligence to make sure you get any notifications, (like keeping the keepers details up to date), unless the court accepts it wasn’t reasonable for you to do that (yeah, tha may be hard) you’ll be convicted as the law says.


Update. Appeared for Stat Dec in court via telephone. Stat Dec accepted. I was told I cant be advised on plea but based on courts experience I do have an argument to have a "day in court " to present my argument before magistrate and it will be magistrate discretion and decision as final. It was duly noted that I did have a redirection setup in first 6 months and I did get informed and collected my mail from current residents but I only received the fine letters from them and never received the NIP or SJP which is actually true. I was asked what do I plea and I have pleaded Not Guilty. Points and Fine removed for now. Have asked DVLA to reinstate license.Trial date set for next year - will update in forum the outcome.

Wish me luck and all advice is appreciated as I have never been to a court or trial before.
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Jlc
post Fri, 20 Nov 2020 - 20:01
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What charge(s) are you facing now?

(I had a quick look back through the thread but couldn't see?)


--------------------
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, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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adonis114
post Fri, 20 Nov 2020 - 20:55
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QUOTE (Jlc @ Fri, 20 Nov 2020 - 20:01) *
What charge(s) are you facing now?

(I had a quick look back through the thread but couldn't see?)


Its the same charge S172 - Failed to respond. However I am going for a Trial on Not Guilty Plea. The argument being I had shifted from the address, changed my license address ( forgot V5C ) and arranged for redirection for first six months followed by physical visits for post collection and only post handed over were the final fine notice and not the initial notice of NIP and subsequent notice. The people handling the mail at the address never received the initial notice but received only the final court notice.
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notmeatloaf
post Fri, 20 Nov 2020 - 23:56
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I think you are on very shaky ground here.

PSA 2000 says that service can be assumed under the Interpretation Act 1978 if it is sent to your last known address.

https://www.legislation.gov.uk/ukpga/2000/2...cted?view=plain

In the end no matter what redirection you put in place, time periods, what current residents say etc. I think you will struggle to convince a court that the V5C address is not the "last known address" for the purposes of presumption of service. Any claim it wasn't delivered - rebutting service - is likely to be weak if it's solely on the basis the current residents didn't give it to you.

If you don't understand by not changing the address you are already on the back foot (remember, magistrates are almost certainly the sort of people with advanced home filing systems) and the importance of presumption of service then you are better off going for a plea bargain and hoping they will resurrect the traffic light charge.

Otherwise you risk finding out magistrates aren't big on tea and sympathy for bad luck after a simple mistake.
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adonis114
post Sat, 21 Nov 2020 - 10:32
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QUOTE (notmeatloaf @ Fri, 20 Nov 2020 - 23:56) *
I think you are on very shaky ground here.

PSA 2000 says that service can be assumed under the Interpretation Act 1978 if it is sent to your last known address.

https://www.legislation.gov.uk/ukpga/2000/2...cted?view=plain

In the end no matter what redirection you put in place, time periods, what current residents say etc. I think you will struggle to convince a court that the V5C address is not the "last known address" for the purposes of presumption of service. Any claim it wasn't delivered - rebutting service - is likely to be weak if it's solely on the basis the current residents didn't give it to you.

If you don't understand by not changing the address you are already on the back foot (remember, magistrates are almost certainly the sort of people with advanced home filing systems) and the importance of presumption of service then you are better off going for a plea bargain and hoping they will resurrect the traffic light charge.

Otherwise you risk finding out magistrates aren't big on tea and sympathy for bad luck after a simple mistake.



Yes completely get it. Counting on that they resurrect the charge of traffic light offence to which I am more than happy to admit as I was the driver anyways. The situation was well heard and I was informed that I should present it to magistrate. The only option thats possoble is through a trial.
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nosferatu1001
post Sun, 22 Nov 2020 - 22:53
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You'd need to speak to a prosecutor first, and see if they'll do the usual deal.
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The Rookie
post Mon, 23 Nov 2020 - 06:38
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This isn’t ‘the usual deal’, this is asking them to bring an out of time charge which the magistrates and defence don’t challenge, it’s very different.


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Logician
post Mon, 23 Nov 2020 - 12:01
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QUOTE (The Rookie @ Mon, 23 Nov 2020 - 07:38) *
This isn’t ‘the usual deal’, this is asking them to bring an out of time charge which the magistrates and defence don’t challenge, it’s very different.


...........and then do the usual deal.


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adonis114
post Wed, 24 Feb 2021 - 18:16
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Dear All

As promised updating the final outcome of the case.
So as I had updated last that I did SD in November and took the hint from the clerk who said he cant advise but if I want to explain ro magistrate then it can only happen via trial. I went for trial with a NG plea. Trial was today. First time courtroom experience. There were 2 magistrates and prosecution and I was self represented. Prosecution read out the law; charges and evidence for Failure to respond. I was called to witness box and explained the sequence of events. Everyone was mighty pleased I had a Royal Mail redirection evidence. Prosecution argued that it was not covering the time notice was served. I mentioned that sufficient arrangements were made as the people staying were known to us and we were in touch for mails of all kind. Prosecution asked evidence when my license was changed and I mentioned in 2018 itself and she fumvled a bit as she said she was meaning V5C but she kept on asking about license and I said every other address were correct except V5C. They mentioned its my fault to which I accepted my mistake and apologized but I countered saying I dont accept Failure to respond as I had arrangements for mail and I did respond as soon as I got to know of the case. Magistrate asked a few questions if I ever received a mail in March and I said no as honestly we didnt and neither did the folks handling the mail. I explained that only mails I received were during September when I learnt the case and filed for SD. Magistrates asked a few more questions on how I used to collect the mails etc. and what was the arrangement to which I replied the arrangements I had and can give evidence as well ( we had whatsapp exchanges with the resident and all we ask is about mails smile.gif and it had a nice timeline but I wasnt asked for evidence ) The two magistrates then took a 5 min recess and came back and announced that they find my evidence credible and I had taken sufficient steps to receive the mail including redirection as well as subsequent arrangements. Given the same they find me Not Guilty!! So thst was it. Came out of the room happy. Thanks everyone for your advice.
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Gerfc1
post Wed, 24 Feb 2021 - 21:07
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Wow, amazing results even if you are willing to accept 3 points.

Well done!
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