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Advice on defending myself against s172
ninjainwaiting
post Fri, 19 Oct 2018 - 20:16
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Hello everyone,

I am inviting any advice or experiences of defending an alleged s172 at Magistrates Court. I recently received a Single Justice Proceedure Notice (SJPN) alleging two offences - Speeding 80 in a 70 (Motorway) and failing to provide driver details section 172(3). I did not receive a Notice of Intended Prosecution (NIP) prior to the SJPN. I pleaded not guilty to both offences because I had not received a NIP. I have received my court date which is in a few weeks and have been charged with s172 - the alleged speeding offence does not appear on the court papers.

My main defence is that I did not received the NIP within the 14 days required. It appears that the authorities do not seem to use any tracking or signed for mail options, so cannot prove I received it. I will also try question the way the NIPs are generated - they appear to be computer generated and I wonder if there are controls in place where details/posting are completed/checked by a human operator.

The witness statement by the administrator includes a hefty disclaimer 'I cannot be reasonably expected to have any recollection of the matter dealt with in this statement due to the length of time that has passed'. In the next sentence the administrator endorses the statement several months after statement actions were made. I wonder if this renders the statement unreliable.

On the SJPN two dates (one date had not come around at the time the SJPN was written!) were cited as me not having provided details leading to the s172 charge. In the court summons this has been amended to one. I believe the papers can be altered by 'slippage' for minor details. A date of an alleged offence does not seem to be a minor detail.

Thanks for reading through my post. I would be grateful for any advice or sharing of experiences on the above points and observations, and any other observations you may have. If you require any clarification or further details please let me know here.
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Jlc
post Fri, 19 Oct 2018 - 20:22
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There may still be the option to accept the underlying charge in exchange for dropping the s172 (if you were driving).

A s172 conviction is nasty. If the Police can evidence the NIP/s172 entering the postal system then it is for you to rebut the presumption of delivery. (Not for them to prove it arrived)

Without seeing the full statement it's hard to say if there is sufficient doubt to assist you.


--------------------
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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roythebus
post Fri, 19 Oct 2018 - 20:26
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A s172 conviction can be expensive, anything from a fine of £600 and 6 points up to about £1000 and 6 points.
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ninjainwaiting
post Fri, 19 Oct 2018 - 20:40
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Yes I understand it can be expensive in terms of a fine and the additional insurance charges along with the points. I do not know if the Police can show it has entered the postal system. Presumably they have to show 'Proof of Postage'?

The witness statement is as follows

'I xxx have created this statement in my role as Court File Administrator for Cumbria Constabulary Central Ticket Office and I am duly authorised by the Chief Constabulary to determine proceedings in respect of offences detected by means of camera equipment and roadside checks. I ask this statement be admitted as a s business documentary record in accordance with section 117 of the Criminal Justice Act 2003. The suppliers of information contained in this statement had or may reasonably be supposed to have had personal knowledge of the matters being dealt with and each person received the information in the course of their occupation with Cumbria Constabulary for the Central Ticket Office. Due to the high volume of alleged Road Traffic Offences process by the Central ticket Office I cannot reasonably be expected to have any recollection of the matters dealt with in this statement having regard to the length of time since the information was supplied, the numbers of alleged offences processed and all other circumstances.
I exam photographic evidence, from the evidence initially recorded as an offence by xxx front the Home Office type approved device with offence reference xx.
The date provided on this film is automatically recorded as the device is activated and confirms that the camera is operating correctly. This data then auto-populated a NIP and a requirement under section 172 of the Road Traffic Act 1988 for details of the drive of the vehicle at the time of the offence.
On xxxx this document was sent 1st class pre paid post to the registered/ last know keeper xxxx (details were correct)
I now confirm that I have checked all the relevant computer systems and these is no record of a reply being received from the defendant and therefore the defendant has failed to comply with their obligation under s172 of the Road Traffic Act 1988.
stamens digitally signed.
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Jlc
post Fri, 19 Oct 2018 - 20:46
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Is the address on your v5 100% correct? Any previous postal issues?

The don't use proof of posting. (Nor do they have to as long as the court is convinced that the document was produced and posted)


--------------------
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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ninjainwaiting
post Fri, 19 Oct 2018 - 20:51
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Yes the address on my V5 is correct. I have had previous postal issues. I had to request a copy of the Court Summons, and have had other mail not arriving over the years but nothing I can easily evidence. I have everything possibly sent to me electronically now.
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southpaw82
post Fri, 19 Oct 2018 - 21:54
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On the face of it you have a statement saying that the s 172 notice (and NIP) was correctly addressed and posted. I think it is unlikely that you have evidence to challenge that. You could cross examine the witness to try to elicit evidence of flaws in the procedure but that’s a fishing expedition and you don’t know what you might catch.

The presumption in law is that a notice properly addressed and put in the post is delivered, unless you can prove otherwise (on the balance of probabilities). If you can do that then you have a defence to both charges.

It is up to you whether you wish to take a gamble on the court believing you re non-delivery or do a deal to accept the speeding offence in return for the s 172 being dropped - if you were in fact the driver.


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Logician
post Fri, 19 Oct 2018 - 22:03
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I think if challenged, the prosecution will be able to show that a NIP was produced and included in a bag of mail that was collected by Royal Mail. There is then a rebuttable presumption that it was delivered two business days later. Rebutting successfully is difficult, evidence of previous postal issues is helpful of course. If you were driving you might be better advised to do the customary deal, whereby the s.172 charge is dropped if you plead guilty to the speeding. Although the speeding is not on the court papers it may be possible to resurrect the charge since it was there at the SJP stage.

As there is no evidence as to who was driving your car, since you have not told them, there can be no conviction for the speeding unless you plead guilty. Get to court early and ask one of the ushers (people scurrying about with clipboards and possibly gowns getting things organised) to point out to you the prosecutor who will be dealing with traffic matters. Say to him/her that you will plead guilty to the speeding if they will drop the s.172. We have never heard of prosecutors refusing to do this, they prefer to get a conviction for the underlying offence, and regard the two offences as effectively alternative offences. If you do not manage to speak to the prosecutor beforehand, you should still be able to do the deal in the courtroom. It is very difficult to do this in advance of the court hearing as you would have trouble speaking to the right person.
If you had received the NIP you could have nominated yourself as the driver and would then have received the offer of a fixed penalty. The normal sentencing for speeding in court would be rather more severe than this, so you would have been disadvantaged. Therefore you should point this out to the court and request to be sentenced at the fixed penalty level, which is a guideline for magistrates' courts in these circumstances. The actual wording of the guideline is:

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


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seank
post Sat, 20 Oct 2018 - 10:53
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Having sat through a recent, high-profile case, I'd say that the NIP delivery system is a weak link in the process.
I have taken particular interest in this area in the months before and weeks after the case.
My company requested the precise details of how several SC partnerships deliver their NIPs. Most of them seem to do this:
Receive data from camera equipment, police hand-written notes or other sources such as the DVLA.
Upload the data to automatic machines which print NIP data onto paper.
Place papers into envelopes and throw the envelopes into Royal Mail bulk sacks, onto the floor near the sacks, under the tables near the sacks etc.
Despatch the RM sacks via the RM collection person.
RM then sorts the envelopes. I forget how many letters RM admits to losing each year. 3 million, from memory.
NIP letter is then delivered to, or somewhere near to, the recipient's address. RM admits there are many mis-delivery errors. Around 250,000 per year, from memory.

Please be aware of the advice you've been given, but if you genuinely haven't received the NIP, in your hands, within 14 days, let them fight your rebuttal of service. If everyone did that, the system would have to change to recorded delivery, as it used to be years ago by registered post.

This post has been edited by seank: Sat, 20 Oct 2018 - 10:55
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666
post Sat, 20 Oct 2018 - 11:25
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QUOTE (seank @ Sat, 20 Oct 2018 - 11:53) *
Having sat through a recent, high-profile case, I'd say that the NIP delivery system is a weak link in the process.
I have taken particular interest in this area in the months before and weeks after the case.
My company requested the precise details of how several SC partnerships deliver their NIPs. Most of them seem to do this:
Receive data from camera equipment, police hand-written notes or other sources such as the DVLA.
Upload the data to automatic machines which print NIP data onto paper.
Place papers into envelopes and throw the envelopes into Royal Mail bulk sacks, onto the floor near the sacks, under the tables near the sacks etc.
Despatch the RM sacks via the RM collection person.
RM then sorts the envelopes. I forget how many letters RM admits to losing each year. 3 million, from memory.
NIP letter is then delivered to, or somewhere near to, the recipient's address. RM admits there are many mis-delivery errors. Around 250,000 per year, from memory.

Please be aware of the advice you've been given, but if you genuinely haven't received the NIP, in your hands, within 14 days, let them fight your rebuttal of service. If everyone did that, the system would have to change to recorded delivery, as it used to be years ago by registered post.


3 million "lost" letters sounds alarming, but needs to be seen in the context of the billions posted. RM's most recent report shows 99.72% of items deemed correctly delivered, or roughly 1 in 350 lost.

Recorded delivery is not the answer. If I were expecting a NIP, I would just refuse delivery.

BTW I doubt whether any organisation like the MET which processes thousands of NIPs daily would rely on humans to stuff the envelopes and throw them into sacks. Machines can stuff, seal, frank and bundle them ready for collection in bulk. But no doubt in the smaller operations you're right.
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morrisman
post Sat, 20 Oct 2018 - 11:26
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QUOTE (seank @ Sat, 20 Oct 2018 - 11:53) *
RM then sorts the envelopes. I forget how many letters RM admits to losing each year. 3 million, from memory.
NIP letter is then delivered to, or somewhere near to, the recipient's address. RM admits there are many mis-delivery errors. Around 250,000 per year, from memory.


in 2015/16 the number of letters posted was 12.3 billion.

So using your numbers that is 0.024% lost and 0.002% mis-delivered. Difficult figures to use to support a rebuttal argument.
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cp8759
post Sat, 20 Oct 2018 - 11:38
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QUOTE (666 @ Sat, 20 Oct 2018 - 12:25) *
Recorded delivery is not the answer. If I were expecting a NIP, I would just refuse delivery.

That won't work, see section 1(2) of the Road Traffic Offenders Act 1988:

"A notice shall be deemed for the purposes of subsection (1)(с) 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."

This post has been edited by cp8759: Sat, 20 Oct 2018 - 11:38


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southpaw82
post Sat, 20 Oct 2018 - 12:24
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QUOTE (cp8759 @ Sat, 20 Oct 2018 - 12:38) *
QUOTE (666 @ Sat, 20 Oct 2018 - 12:25) *
Recorded delivery is not the answer. If I were expecting a NIP, I would just refuse delivery.

That won't work, see section 1(2) of the Road Traffic Offenders Act 1988:

"A notice shall be deemed for the purposes of subsection (1)(с) 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."

Exactly. Be careful what you wish for.


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seank
post Sat, 20 Oct 2018 - 12:34
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QUOTE
3 million "lost" letters sounds alarming, but needs to be seen in the context of the billions posted. RM's most recent report shows 99.72% of items deemed correctly delivered, or roughly 1 in 350 lost.

Recorded delivery is not the answer. If I were expecting a NIP, I would just refuse delivery.

BTW I doubt whether any organisation like the MET which processes thousands of NIPs daily would rely on humans to stuff the envelopes and throw them into sacks. Machines can stuff, seal, frank and bundle them ready for collection in bulk. But no doubt in the smaller operations you're right.


3 million "lost" letters doesn't alarm you?
How about if you packed parachutes for a living? How many failures would be acceptable?
If you delivered babies rather than letters, how many deaths are OK?
If one of my airbags didn't inflate or my seatbelts didn't work, would that be just fine, I wonder?

If Royal Mail got a grip, their business wouldn't be in terminal decline. My daughter lives in Belgium. The UK is the only place she can't get insured mail sent to, because of the sheer number of thieves employed by RM.
Would you like me to show you the links? Every single day of every single year, an RM postman is sacked for theft. Who knows whether the OP got his NIP letter, but the RM delivery system is unfit for purpose.
I've had cards through the door, gone to the RM delivery office without the card and the woman just gave me my item without further question. "Couldn't be arsed". What a system.
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henrik777
post Sat, 20 Oct 2018 - 18:30
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QUOTE (morrisman @ Sat, 20 Oct 2018 - 12:26) *
QUOTE (seank @ Sat, 20 Oct 2018 - 11:53) *
RM then sorts the envelopes. I forget how many letters RM admits to losing each year. 3 million, from memory.
NIP letter is then delivered to, or somewhere near to, the recipient's address. RM admits there are many mis-delivery errors. Around 250,000 per year, from memory.


in 2015/16 the number of letters posted was 12.3 billion.

So using your numbers that is 0.024% lost and 0.002% mis-delivered. Difficult figures to use to support a rebuttal argument.


So a tiny percentage. But it also shows 26 times out of 1000 have issues purely down to Royal mail (On average). That's without any processing issues at NIP quarters.

So to totally dismiss an issue is nonsense since, statistically speaking, it's guaranteed to happen.
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seank
post Sat, 20 Oct 2018 - 20:43
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QUOTE (henrik777 @ Sat, 20 Oct 2018 - 19:30) *
QUOTE (morrisman @ Sat, 20 Oct 2018 - 12:26) *
QUOTE (seank @ Sat, 20 Oct 2018 - 11:53) *
RM then sorts the envelopes. I forget how many letters RM admits to losing each year. 3 million, from memory.
NIP letter is then delivered to, or somewhere near to, the recipient's address. RM admits there are many mis-delivery errors. Around 250,000 per year, from memory.


in 2015/16 the number of letters posted was 12.3 billion.

So using your numbers that is 0.024% lost and 0.002% mis-delivered. Difficult figures to use to support a rebuttal argument.


So a tiny percentage. But it also shows 26 times out of 1000 have issues purely down to Royal mail (On average). That's without any processing issues at NIP quarters.

So to totally dismiss an issue is nonsense since, statistically speaking, it's guaranteed to happen.

Exactly right, showing that you've thought about this.
RM simply isn't up to the job.
If my wife gave birth to a dead baby, because the NHS only fails on xxx occasions, much worse than the rest of Europe, I wouldn't be that happy (to put it mildly). The OP says he didn't get the letter in time, just like I spent 6 hours in court, listening to Nick Freeman rip a couple of women to shreds. They said all their NIPs were sent first class. Complete and utter ball locks. Confirmed today, as we're still getting loads.
If I can turn up at a RM delivery office, producing nothing but a smile, how can I get a postal item for an address?
Why are my letters delivered doors away?
Where are the training records for any RM postman? (They don't exist)
Why is an RM postman sacked every single day for theft?
Why do RM admit that 30 million letters are "lost" every year?
The OP has a very good case. Nick Freeman would win, with just these admitted facts.
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BaggieBoy
post Sat, 20 Oct 2018 - 21:18
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I think this is veering into a Flame Pit topic.
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southpaw82
post Sat, 20 Oct 2018 - 21:27
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QUOTE (BaggieBoy @ Sat, 20 Oct 2018 - 22:18) *
I think this is veering into a Flame Pit topic.

No kidding. Comparing lost mail to parachutes not opening etc is comparing apples and oranges. Back on topic.


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666
post Sun, 21 Oct 2018 - 14:37
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QUOTE (henrik777 @ Sat, 20 Oct 2018 - 19:30) *
QUOTE (morrisman @ Sat, 20 Oct 2018 - 12:26) *
QUOTE (seank @ Sat, 20 Oct 2018 - 11:53) *
RM then sorts the envelopes. I forget how many letters RM admits to losing each year. 3 million, from memory.
NIP letter is then delivered to, or somewhere near to, the recipient's address. RM admits there are many mis-delivery errors. Around 250,000 per year, from memory.


in 2015/16 the number of letters posted was 12.3 billion.

So using your numbers that is 0.024% lost and 0.002% mis-delivered. Difficult figures to use to support a rebuttal argument.


So a tiny percentage. But it also shows 26 times out of 1000 have issues purely down to Royal mail (On average). That's without any processing issues at NIP quarters.

So to totally dismiss an issue is nonsense since, statistically speaking, it's guaranteed to happen.

No, it’s 26 out of 100,000. Maybe best not to comment on statistical matters.
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ninjainwaiting
post Sun, 21 Oct 2018 - 18:44
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Thanks for all the interesting points everyone. I will spend some time reading the Royal Mail Annual Accounts and look for current loss/misdelivery rates. They obviously acknowledge that they have a problem delivering items with regular post and I will be interested to see what methodology they use to calculate those mail misdeliveries and losses as none of those mail items are tracked.

Infact Royal Mail do advise customers when send items of importance or value, that the mail should be sent using special delivery. I quote directly from their website below:

'When you’re sending something important or valuable, you need to know it’s secure at every stage of the delivery. With our Special Delivery Guaranteed services your item will arrive safely, and on time, or we’ll give you your money back.
Choose our guaranteed service when you need:
to track important documents online and get signed proof of delivery
compensation cover for sending jewellery, cash or other valuables
Saturday delivery (for an additional fee) to get those tickets or birthday gifts there for the weekend
consequential loss cover (available for an additional fee) for example, tax returns or documents that if late, could result in penalties.'

Seems strange that authorities ignore this and perhaps it could be argued that they are failing in their duty of care.
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