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Bath Magistrates’ Court today – NOT GUILTY!
Mika
post Tue, 9 Mar 2004 - 14:09
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Hi all,

You may find the following difficult to believe but the outcome of today’s unsigned form case, held at Bath Magistrates’ Court, was as follows:

The magistrates ruled that there was no case to answer and awarded the defendant costs. icon_eek.gif

The clerk tried to stop me from being allowed to say anything but the magistrates were having none of it. icon_redface.gif

There was all the usual stuff: Broomfield, Jones & PACE etc.  However, the defendant [Registered Keeper] had not received the NIP, via first class post, until some 27 days after the date of the alleged offence.

As the statutory requirement of Section 1.(c ) of the Road Traffic Offenders Act 1988 had not been complied with, we submitted that the NIP had “time expired”.

The defendant swore under oath that he had not received the NIP until some 27 days after the date of the alleged offence and we showed the magistrates a letter that he had sent to Avon & Somerset Constabulary confirming this.

The magistrates ruled that there was no case to answer because, despite Avon & Somerset Constabulary saying in correspondence to the defendant that they would submit evidence to prove that the NIP was posted on time, no such evidence was made available in court.

We quoted the case of Nicholson v Tapp as authority for our argument. The magistrates accepted the argument and, because they found that there was no case to answer, they declined to rule on any of the other points of law that we had introduced:

Nicholson v Tapp
(DC) Divisional Court
c.1972

Summary

Abstract: A notice of intended prosecution posted on the fourteenth day after the alleged offence does not comply with the provisions of the Road Traffic Act 1960 s. 241(2) (as amended). A notice of intended prosecution for an alleged offence of dangerous driving was posted to T by recorded delivery service on the fourteenth day after the incident in question.
Summary: Held, the notice did not comply with s. 241(2) of the Road Traffic Act 1960 (as amended). (R. v London County Quarter Sessions Appeals Committee Ex p. Rossi [1956] C.L.Y. considered).

Cases Cited

R. v London County Quarter Sessions Appeals Committee Ex p. Rossi, [1956] 1 Q.B. 682; [1956] 2 W.L.R. 800; [1956] 1 All E.R. 670; (1956) 120 J.P. 239; (1956) 100 S.J. 225 (CA)

Legislation Cited

As amended by Road Traffic Act 1962 s. 51
Road Traffic Act 1962
Road Traffic Act 1960 s. 241

Full Judgement:

[QUEEN'S BENCH DIVISION]

NICHOLSON v. TAPP

1972 June 9


Melford Stevenson, Bridge and Ackner H.

Road Traffic-Notice of 'intended prosecution-Service of notice -
Sending by recorded delivery service on 14th day after commission of offence - -Whether sufficient-Road Traffic Act 1960 (8 & 9 Eliz. 2, c. 16), s. 241 (2) (as amended by Rood TrafficAct 1962 (1O & 11 Eliz. 2, c. 59), s. 51, Sch. 4)

By section 241 (2) of the Road Traffic Act 1960 as amended:

" . . . where a person is prosecuted for an offence to which this section applies he shall not be convicted unless ". . . (c ) within. . . 14 days a notice of the intended prosecution . . . was. . . served on him . . . and the notice shall be deemed for the purposes of paragraph (c ) of this subsection to have been served on any person if it was sent by . . . recorded delivery service. . ."

On the 14th day after the commission of an offence to which section 241 of the Road Traffic Act 1960 as amended applied a notice of intended prosecution was sent to the defendant by recorded delivery service, and an information was preferred against him for the offence. The justices dismissed the information on the ground that the prosecutor had failed to comply with section 241 (2).

On appeal by the prosecutor: -

Held, dismissing the appeal, that the decision of the justices was right.

Per curiam. Clear statutory language would have been used if the intention had been to extend the period of time beyond 14 days where the prosecution use the Post Office facilities instead of effecting personal service (post, p. 1046D).
Reg. v. London County Quarter Sessions Appeals Committee, Ex parte Rossi [1956] 1 Q.B. 682, D.C. considered.

The following cases are referred to in the judgment:
Groome v. Driscoll (Note) [1969] 3 All E.R. 1638; [1970] R.T.R. 105, D.C.
Reg. v. London County Quarter Sessions Appeals Committee, Ex parte Rossi [1956] 1 Q.B. 682; [1956] 2 W.L.R. 800; [1956] 1 All E.R. 670, C.A.

The following additional case was cited in argument:
Beer v. Davies [1958] 2 Q.B. 187; [1958] 2 W.L.R. 920; [1958] 2 All
E.R. 255, D.C.

CASE STATED by Northamptonshire justices.
On January 28, 1972, an information was laid by the prosecutor, Thom Fisher Macmillan Nicholson, against the defendantl Barry Trevor Tapp that he on November 17, 1971, drove a motor car on Wellingborough Road at the Junction With Bouverie Street, Northampton in a manner which was dangerous to the public, having regard to all the circumstances of the case, contrary to section 2 of the Road Traffic Act 1960.

The justices heard the information on March 13, 1972, and found the following facts.  The defendant was the driver of a motor car which was alleged was driven in a manner dangerous, as stated in the information on November 15, 1971. The police constable who interviewed the defendant at at the scene of the alleged offence did not give a verbal notice of intended prosecution. A summons was not served on the defendant in 14 days immediately following the commission of the alleged offence.  A written notice of intended prosecution was sent, by recorded delivery post on November 29, 1971, being the 14th day after the alleged offence.

At the conclusion of the evidence for the prosecutor and defendant it was submitted for the defendant that the prosecutor had failed to comply with the provisions of section 241 of the Road Traffic Act 1960 as amended.  The solicitor for the defendant referred to Stone's Justices' Manual, 1971 ed., p. 3093, footnote (a) which cited Groome v. Driscoll (Note) [1969] 3 All E.R. 1638 in support of his submission.

The justices upheld the submission of the defendant's solicitor and dismissed the information.

The prosecutor appealed.

The question for the opinion of court was whether the justices were correct in upholding the submission of the defendant's solicitor and dismissing the information.

David Barker for the prosecutor.
The defendant did not appear and was not represented.

MELFORD STEVENSON J. Ackner J. will deliver the first judgment.

ACKNER J. This is a case stated by Northamptonshire justices in relation to a decision which they reached on January 28, 1972, relative to an information laid against the defendant that he on November 15, 1971, drove a motor car in Wellingborough Road, Northampton in a manner  which was dangerous to the public. It was established that he was the driver of the motor car which it was alleged had been driven in a manner dangerous; that the police constable who interviewed him did not give a verbal notice of intended prosecution; that a summons was not served on the defendant within 14 days immediately following the commission of the alleged offence; and that a written notice of intended prosecution was sent by recorded delivery post on November 29, 1971, that being, and I stress, the 14th day after the alleged offence.
At the conclusion of the evidence it was submitted by the solicitor for the defendant that the prosecutor had failed to comply with the provisions of section 241 of the Road Traffic Act 1960 as amended, which submission was accepted by the justices. That Act as amended is conveniently set out in its amended form in the case on which the prosecutor in fact relies in
this court, Groome v. Driscoll (Note) [1969] 3 All E.R.. 1638. It reads:

" (2) Subject to the following provisions of this section, where a person is prosecuted for an offence to which this section applies he shall not be convicted unless. . . © within the said 14 days a notice of the intended prosecution specifying the nature of the alleged offence and the time and place where it is alleged to have been committed, was. . . (ii) . . . served on him, or on the person, if any, registered as the owner of the vehicle at the time of the commission of the offence."

That section was amended by Schedule 4 to the Road Traffic Act 1962: With the result that there were added the following concluding words:
"and the notice shall be deemed for the purposes of paragraph © of this subsection to have been served on any 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 undelivered or was for any other reason not received by him."

It is clear that without the addition of those words any. notice which had
been sent by registered post would, by reason of section 26 of the Interpretation Act 1889: be deemed to have been effected at the time when the letter would be delivered in the ordinary course of post, unless the contrary was proved. Reg. v. London County Quarter Sessions Appeals Committee Ex parte Rossi [1956] 1 Q.B. 682 indicates how proof that in fact the document did not arrive in the ordinary course of post nullifies the presumption which would otherwise exist.

I take the view that that amendment was designed to ensure that the presumption that a document which if delivered in the ordinary course of post would arrive within 14 days, was not to be gainsaid by the de facto proof that it had not in fact arrived within that period. Hence the words "notwithstanding that the notice was returned undelivered or was for any other reason not received by him."

Mr. Barker's argument is and must be that that amendment enables the prosecution, when serving by post, to have another day or perhaps even another two days longer than if they had effected personal service, because on his submissions it would be open to the prosecution to post a letter one minute before midnight on the 14th day. That clearly would mean that, in the ordinary course of post, the addressee would not receive it until the 15th or even the 16th day. If that amendment had been intended to extend the period of time where the procedure of using the Post Office facilities were adopted it would have said so in very clear language. In my judgment all the amendment created by Schedule 4 to the Act of 1962 did was to prevent a defendant establishing that, although a document had been despatched in time enough to reach him in the ordinary course of post within the statutory 14 days, de facto it had not done so.

Accordingly in my judgment the justices were right in their decision and accordingly this appeal should be dismissed.

MELFORD STEVENSON J. I agree.

BRIDGE J. I also agree.


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post Tue, 9 Mar 2004 - 14:09
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robin-g
post Tue, 9 Mar 2004 - 15:27
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Mika,
Did you get the sense that the Mags were keen to avoid a discussion on any of the other points of law? Could it be that there has been some direction to Mags Courts on how to deal with what is becomming a rather sensitive subject?

I cannot believe that no-one in government is following this as closely as we are. If they are, then they will be keen to avoid political embarrassment. The various high profile cases approaching may do nothing to bolster the reputation of the legal system for justice nor of the government for surreptitious taxation.

Robin
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Mika
post Tue, 9 Mar 2004 - 15:43
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Robin,

The only “sense” that I got was that they are getting very fed up with people turning up at their court wanting to enter into legal arguments on complex points of law.

The clerk said on more than one occasion: “Mr McKenzie is not a lawyer”.

However, my favourite part was when she (the clerk) accused me of selectively quoting from case law. icon_eek.gif

I replied: “do you mean like only reading out paragraph [24] of Broomfield icon_question.gif

I received a terse rely: “Broomfield has decided that the form must be signed”. rolleyes.gif


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dave99
post Tue, 9 Mar 2004 - 16:03
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QUOTE (Mika)
However, my favourite part was when she (the clerk) accused me of selectively quoting from case law. icon_eek.gif  

I replied: “do you mean like only reading out paragraph [24] of Broomfield icon_question.gif


I thought thats all the prosecution ever did - use just the bit that helps them!?
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The Rookie
post Tue, 9 Mar 2004 - 16:34
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Thats the whole point surely, that you don't want to quote the whole damn lot, just the bit that means something, anyway who needs Broomfiled when the Scammers can't even produce the 'evidence' they allege thay have! Well done Mika!

Simon
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Blackbird
post Tue, 9 Mar 2004 - 17:55
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Congratulations Mika

Was it by any chance the same clerk as before? If it was it appears she has learnt a new sentence

QUOTE
Mr McKenzie is not a lawyer.
to add to

QUOTE
Broomfield has decided that the form must be signed


Best Regards


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Mika
post Tue, 9 Mar 2004 - 18:09
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Blackbird,

No it was a different clerk, but she was just as pleased to see me. biggrin.gif Incidentally, we have just received this note of thanks from the defendant:

“Well what can I say, the naughty boys' club descended on Bath Magistrates' Court earlier today. All except the founder member who with incredible brinksmanship managed to swan in with minutes to spare.

Mika looked like a cross between an immaculate, skinny Rumble of the Bailey and Ian Both on a bad day. (I'm still not sure about the white trousers). Limping badly he explained it was all due to a skiing accident, I still think the white trousers were to blame.

Into court and the fun began, Mika was magnificent, eloquent and extremely polite. His obvious knowledge of the legal system tells me he's in the wrong job. The bottom line was not guilty and costs against the police.

A very big thank you to Mika who has taken the time and trouble to help me through all this and if he can help you, remember this web site costs money to run so bung him a contribution.

Thanks again Mika, still not sure about those trousers.

Bob Chapman, Chairman South Gloucestershire Taxi Association and member of the Bath lodge naughty boys’ club.”


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