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Parky650s
Hi,I am new here and am grateful for the forum presence.I hope someone knowledgeable can assist me please?

I recieved a section 172 reminder notice reminding me of my need to tell them who was driving my car (I am registered keeper)on 13 March due to an alleged offence.I sent them the S172 back with a letter explaining this was the first correspondence from them and to take into account I had never recieved a NIP.They wrote back saying it was sent to me in time.
I questioned this again and recieved a letter saying it was issued seven days after the alleged offence and delivered to the wrong address,sent back to them and resent to me second class.
I still have never received the NIP to this day and after not replying to the conditional offer (they haven't actually told me what offence I was allegedly doing so how could I enter a plea) I have yesterday (2days inside 6 months)recieved a summons to appear at 00.00hrs at court or accept or dispute by post.Is this standard till court hearings are worked out or have they messed up.
In summary does the NIP (issued seven days after alleged offence)being sent to wrong adress,retuned to them and then resent second class to me(i have that in writing from police) but never arrived(can't prove that one) apply to the 14 day rule?
It turns out the offence is 58 in a 50 limit on the motorway.As yet we haven't got to the evidence stage and I know there was three other cars around me.
All usefull opinions gratefully received.Many thanks.
AntonyMMM
The late NIP may (depending on the reasons why) present a bar to a successful prosecution for the speeding offence but the s172 requirement to name the driver was still valid ..... have you done that at any stage ?

What offences are on the summons ..... just speeding or is there an additional charge of failing to nominate the driver ?
Gan
Did you name yourself as the driver when you returned the S172 with a note ?
You can argue that you did if they sent you a COFP.

Plead Not Guilty on the grounds that a Notice to Prosecution wasn't served within 14 days

Their own letters admit that :

1 It was delivered to the wrong address
2 The replacement was sent by second-class post. It must be served by First Class

Isn't midnight an unusual time for a court hearing ?
Parky650s
I filled in the s172 and returned it in time.The only offence is 58 in a 50 on the motorway.Up until yesterday they never stated an actual speed.
peterguk
QUOTE (Parky650s @ Sat, 12 Sep 2015 - 09:18) *
Up until yesterday they never stated an actual speed.


They don't have to.
Parky650s
Gan,I thought they maybe put a time on when they get a list of who wants to go to court.If I pleaded by post I presumed There is no need for a paticular time.
I could easily go at midnight and get evidence to prove I was there to defend if they wish but if they aren't there to give the prosecution case then surely it's can be thrown out.
Does the notice have to be issed or served within 14 days though.I presume this is a big difference.
The Rookie
The first hearing is for pleading anyway, you can do that by post, a trial date will then be set.

Its possible that all hearings that day are to be postal only (improves efficiency) hence the time.
Parky650s
Peter,If they don't tell you what you've actually done how can you enter a plea?
All they said was an alleged offence of "Over 50mph"
It could ha e been in the tolerance percent in which case I would have accepted points and a fine on a "conditional offer"without need.
The Rookie
Well you now have the speed before you needed to enter a plea!

For that you would have been offered a course or fixed penalty, but they don't have to tell you the alleged speed, you will know what was offered.
Parky650s
They offered a fixed penalty but why would anyone accept that if they hadn't been told at that time what they had actually done.
Only now its a court summons have they disclosed any actual speed.

If someone showed up at my door and said "you've done wrong but give us money and we'll leave you alone"
I would ask what I'd done before parting with cash or accepting blame.
Jlc
QUOTE (Parky650s @ Sat, 12 Sep 2015 - 09:51) *
If someone showed up at my door and said "you've done wrong but give us money and we'll leave you alone"
I would ask what I'd done before parting with cash or accepting blame.

Indeed. Many share your concerns. The fixed penalty system is for those that admit the offence and want to dispose of the matter without prosecution.

As you don't appear to be in that camp then you have the opportunity to put the prosecution to strict proof. However, pleading not guilty can be a very costly experience. Prosecution costs are likely to be over £600 and if you maintain the plea and expert witnesses are called expect over £2k.

Think carefully as it is more likely you were speeding.

But the late NIP is an angle to explore but you have to rebut the presumption of delivery. It can be done but is not without risk as noted.
BaggieBoy
The speed is irrelevant, the offence is exceeding the speed limit. That's all they needed to specify.

QUOTE
It could ha e been in the tolerance percent in which case I would have accepted points and a fine on a "conditional offer"without need.

If it had been in the tolerance precent, they would not have even issued a NIP, so it was bound to be above that.
Logician
QUOTE
I questioned this again and recieved a letter saying it was issued seven days after the alleged offence and delivered to the wrong address,sent back to them and resent to me second class.


Please clarify this, do you mean that it was correctly addressed to the registered keeper at the address on the V5C, but delivered by Royal Mail to some different address?
Are you the registered keeper and how many days after the alleged offence date was it delivered to you?
Are you certain it was sent to you second class, not discounted first class?
Gan
They told you that you exceeded 50 mph

That's all you needed to know to decide whether to accept the COFP.
It's the minimum possible penalty that a court will never go under.

It's all irrelevant though.
Your defence is that they never served the NIP at any time.

In my view, your best tactic is to return the form with a Not Guilty plea.

Where it asks the basis of your defence write :

Notice of Prosecution was not served within 14 days. Police have confirmed that it was delivered to wrong address and did not promptly serve a replacement when they discovered the mistake.

It improves the odds that the Prosecutor will twig that you can back up your defence.

When the evidence pack arrives, check carefully, right down to the post code, where they sent the NIP and its missing replacement.

You also need to check urgently the V5 document for the car in case this is the source of the problem

Jlc
Indeed, the sequence of events and available 'evidence' is vital to any such 'late NIP' defence.
Parky650s
I have never disputed the offence As it is only now I have found out exactly what it was.
I questioned the arrival of the NIP.
It still despite several letters to the police has never arrived.
An s172 reminder arrived which I duly returned with a letter asking them to look into the non arrival of NIP.
They replied with a signed letter saying the NIP was issued 7 days after the alleged offence wich was delivered to the wrong address and resent to me second class.They also said I would have to take up the issue of wrong delivery with Royal mail. (Inferring it's not the police fault).It still has never arrived or any copies.
I also have the witness statement they are presumably presenting to the CPS which is named by a camera enforcement officer but not signed saying the NIP and S172 was sent to me first class(different to what the letter states.The witness statement then says that I returned the S172 on 20th April.
I take issue with the wording because it infers I had them both but only returned S172.When in fact what I returned was the subsequent 'S172 reminder' wich was sent out later to me.

The car is registered to me and has been at this adress since purchase in 2011.I tax the car at six months and regularly recieve the tax reminders and all dvla letters with no problems.
I think the camera is a lucrative busy site and they were probably behind on paperwork.All letters recieved from the police have either first or second class 'Prepaid' post markings that you can do with a royal mail account and print envelopes direct rather than a date stamped franked letter.
Gan
The more inconsistencies between their witness statement and their letters to you the better.

If you don't dispute a statement, a court assumes that you agree with it.

Request that the officer attends to explain the differences.

The Interpretation Act says that a letter posted First Class is deemed delivered two business days later unless the contrary is proved.
They've proved it themselves.

They appear to be relying on the Road Traffic Offenders Act 1988 that appears on a first reading to say that the police only have to post the letter.
They're ignoring the ruling in Gidden v Chief Constable of Humberside that this only applies to Recorded Delivery and Registered Post.
Read this carefully because you will be using it.

When the original NIP was returned, somebody should have got in a car and delivered it if there was still time.

Is your V5 correct ?
If not, the 14 days rule goes out the window
Jlc
QUOTE (Parky650s @ Sat, 12 Sep 2015 - 12:56) *
They replied with a signed letter saying the NIP was issued 7 days after the alleged offence wich was delivered to the wrong address and resent to me second class.They also said I would have to take up the issue of wrong delivery with Royal mail. (Inferring it's not the police fault).It still has never arrived or any copies.

As noted above, it's not their fault and the letter is presumed to be delivered and it's your presumption to rebut.

So... You appear to be able to rebut that presumption? Do you have the 'delivered to wrong address' confirmation in writing from them?
Parky650s
So... You appear to be able to rebut that presumption? Do you have the 'delivered to wrong address' confirmation in writing from them?

Yes I have a signed letter from the police saying it was sent seven days after the offence and returned to them.Then they subsequently sent it again second class.
The Nip has never arrived to this day six months later.

They are inferring that as long as it was issued inside 14 days it is valid,regardless of where it went or that it never even got to me.

They appear to be relying on the Road Traffic Offenders Act 1988 that appears on a first reading to say that the police only have to post the letter.
They're ignoring the ruling in Gidden v Chief Constable of Humberside that this only applies to Recorded Delivery and Registered Post.
Read this carefully because you will be using it.

Thanks for that but where would I find this?
Jlc
Peter (Gidden) posts here - check his signature, it has a link to the judgment. (Peterguk)

It appears you can rebut the first NIP. However, if they did send a 2nd one in time then it may well be valid and you would have to rebut that presumption too. Only the 1st NIP has to be sent 1st class, subsequent ones do not have to be but if it was 2nd (and not discounted 1st) then it won't help the prosecution.

Have you seen the 2nd NIP? (Copy of)
Parky650s
They said it was returned from wrong address and subsequently sent second class.
I have never seen any NIP at all only a S172 reminder and a COFP.
And now a court plea.
Monster 900
QUOTE (Parky650s @ Sat, 12 Sep 2015 - 13:58) *
So... You appear to be able to rebut that presumption? Do you have the 'delivered to wrong address' confirmation in writing from them?

Yes I have a signed letter from the police saying it was sent seven days after the offence and returned to them.Then they subsequently sent it again second class.
The Nip has never arrived to this day six months later.

They are inferring that as long as it was issued inside 14 days it is valid,regardless of where it went or that it never even got to me.

They appear to be relying on the Road Traffic Offenders Act 1988 that appears on a first reading to say that the police only have to post the letter.
They're ignoring the ruling in Gidden v Chief Constable of Humberside that this only applies to Recorded Delivery and Registered Post.
Read this carefully because you will be using it.

Thanks for that but where would I find this?


You may find this useful.
Jlc
And you didn't accept the CoFP?

It's your call whether plead guilty to the underlying speeding:



Fine discounted by 33%, costs around £90, surcharge of 10% of the fine. (The offence was before 13 April so you escape the £150 criminal court charge)

...or you plead not guilty and potentially go to trial on the basis the NIP was not correctly served within 14 days and they cannot bring a prosecution. This will require court attendance and success is not assured and will be expensive should you lose. (Expect a bill over £1k).
Parky650s
Monster 900...
So basically the way I read it is that because it was returned to them and they didn't send it first class to me then proper precedure wasn't followed.Therefore that is my defence for the prosecution not taking place?
Jlc
Gidden is quite different. The 1st NIP was dated too late to be guaranteed delivered within the 14 days.

Only the 1st NIP has the 1st class requirement.

Does the 1st NIP being correctly addressed, but mis-delivered, allow a prosecution? (Would the re-sent one have arrived anyway?)

I think section 2 of the Road Traffic Offenders Act gives them an 'out' anyway - see what others think.

EDIT:
Actually, I would say section 1 covers it better:

QUOTE
(2)A notice shall be deemed for the purposes of subsection (1)© 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.


Where

(1)© is 'by sending it by registered post, recorded delivery service or first class post addressed to him at his last known address.'
Logician
Jlc, I am afraid I disagree. s.1 (1A)(c ) permits the notice to be served "by sending it by registered post, recorded delivery service or first class post addressed to him at his last known address"
s.1 (2) is a deeming provision that applies only when the notice is sent registered post or recorded delivery service, it does not apply where the notice is sent by first class post. "A notice shall be deemed for the purposes of subsection (1)(c ) 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." You cannot read the words in bold to include first class post.
Parky650s

Does the 1st NIP being correctly addressed, but mis-delivered, allow a prosecution? (Would the re-sent one have arrived anyway?)


Surely wether it was sent or resent the minimum they should have sent was first class.
Not second class as they have admitted in writing.
Monster 900
QUOTE (Parky650s @ Sat, 12 Sep 2015 - 19:03) *
Monster 900...
So basically the way I read it is that because it was returned to them and they didn't send it first class to me then proper precedure wasn't followed.Therefore that is my defence for the prosecution not taking place?


Sorry, not an expert on the Gidden case but I bookmarked the link in case I was ever in a similar situation.

Others will advise to the best of their knowledge.
peterguk
QUOTE (Jlc @ Sat, 12 Sep 2015 - 19:13) *
Gidden is quite different. The 1st NIP was dated too late to be guaranteed delivered within the 14 days.


Actually, it was posted in good time (day 5), but arrived late (day 16).
Jlc
QUOTE (Logician @ Sat, 12 Sep 2015 - 19:27) *
...cannot read the words in bold to include first class post.

Indeed. It is a complicated pair of sections... What's your opinion in this case, which I summarise AIUI:

1st NIP sent in good time
Returned undelivered from wrong address
Sent another NIP (2nd class it seems) but this didn't arrive (but presumably in time to arrive within 14 days)
First heard is the reminder

Does s2 give them an 'out'?

QUOTE (peterguk @ Sat, 12 Sep 2015 - 20:04) *
QUOTE (Jlc @ Sat, 12 Sep 2015 - 19:13) *
Gidden is quite different. The 1st NIP was dated too late to be guaranteed delivered within the 14 days.


Actually, it was posted in good time (day 5), but arrived late (day 16).

Sorry about that... I thought it was dated 13 days after or so and couldn't arrive in time.

QUOTE (Parky650s @ Sat, 12 Sep 2015 - 19:44) *
Surely wether it was sent or resent the minimum they should have sent was first class.
Not second class as they have admitted in writing.

That's the knub of the issue perhaps. Only the 1st has to be sent 1st class - and it appears they did this (even if you didn't receive it)

In Thais situation does the second one have to be 1st class? (I'm still not convinced, even if they state second as AIUI they generally use discounted 1st via franking)
peterguk
Was the first NIP incorrectly addressed or mis-delivered?
Parky650s
Was the first NIP incorrectly addressed or mis-delivered?

They haven't said.
Only that it was returned from the wrong address and if I had a problem with tjat to take it up with Royal mail.
Obviously inferring the mail service is responsible.
Logician
QUOTE (Jlc @ Sat, 12 Sep 2015 - 20:14) *
QUOTE (Logician @ Sat, 12 Sep 2015 - 19:27) *
...cannot read the words in bold to include first class post.
Indeed. It is a complicated pair of sections... What's your opinion in this case, which I summarise AIUI: 1st NIP sent in good time Returned undelivered from wrong address Sent another NIP (2nd class it seems) but this didn't arrive (but presumably in time to arrive within 14 days) First heard is the reminder Does s2 give them an 'out'?


I do not believe it gives them an 'out' because it only applies to a notice sent registered or recorded.

It is up to the OP to rebut the presumption that the first NIP was delivered to him and therefore properly served, but he can do that easily because he has the letter from the police stating it was returned undelivered.

The NIP (or another NIP) was then sent to him, and if it had been sent first class and arrived within 14 days it would have been properly served, but it was sent second class, as evidenced from the police letter, so could not have been properly served even had it arrived in time. In actual fact it never arrived at all, and it seems doubtful if it would have arrived in time even if sent first class, given that the first NIP was apparently dated 7 days after the offence, and was delivered to the wrong address, sent back to the police and then sent out again.

In short I think the OP has a solid defence on the basis that no NIP was served on him, and thanks to the letter from the police he is in a position to prove that.




Parky650s

That's the knub of the issue perhaps. Only the 1st has to be sent 1st class - and it appears they did this (even if you didn't receive it)

In Thais situation does the second one have to be 1st class? (I'm still not convinced, even if they state second as AIUI they generally use discounted 1st via franking)

They said they "resent" it after it was returned undelivered.
To me that means the original one or they would have said "sent another one".
peterguk
QUOTE (Parky650s @ Sat, 12 Sep 2015 - 20:33) *
Was the first NIP incorrectly addressed or mis-delivered?

They haven't said.
Only that it was returned from the wrong address and if I had a problem with tjat to take it up with Royal mail.
Obviously inferring the mail service is responsible.


IMHO it's important to find out.

If incorrectly addressed, there is no presumption of service.
Parky650s
Logician.
That's the way I read it too.Hopefully CPS will see that too.I have to think they have spent more than the fine in the hours they've spent writing to my letters already.
We haven't even got to the evidence stage yet of which there was three other cars around me and I believe if another vehicle is visible in photos it could be argued it picked them up instead of me.The car infront of me got the double flash too moments before me.Very startling and slowed my reactions.
peterguk
QUOTE (Parky650s @ Sat, 12 Sep 2015 - 20:44) *
I believe if another vehicle is visible in photos it could be argued it picked them up instead of me.


Easy to prove which vehicle triggered the device.

QUOTE (Parky650s @ Sat, 12 Sep 2015 - 20:44) *
The car infront of me got the double flash too moments before me.Very startling and slowed my reactions.


No defence there, and if you were not speeding no sudden reaction necessary.
Parky650s
If incorrectly addressed, there is no presumption of service

Presumption of service is recorded,registered or first class.
Upon resending when the urgency of the matter was needed,they admit to second class postage.
peterguk
QUOTE (Parky650s @ Sat, 12 Sep 2015 - 20:50) *
Upon resending when the urgency of the matter was needed,they admit to second class postage.


There is no obligation to send subsequent notices/reminders by 1st class post.
Parky650s
Peter

I would like to know how its easy to prove so I don't fall foul of using that one.
I wasn't meaning I would use the startled sentence as defence but just saying what happened on the night.I do wonder how fast a gatso can reset after photographing someone because the car infront got a double flash and I got mine straight after.
peterguk
QUOTE (Parky650s @ Sat, 12 Sep 2015 - 20:55) *
I would like to know how its easy to prove so I don't fall foul of using that one.


With the photos in front of you, very easy. Unfortunately you're not entitled to any evidence until you plead NG in court.
Parky650s
There is no obligation to send subsequent notices/reminders by 1st class post

They resent the wrongly delivered one not a subsequent one.
What is your opinion on the witness statement saying it was sent first class yet the reply letter says second class.One of them must be lying in that office.
Jlc
QUOTE (Logician @ Sat, 12 Sep 2015 - 20:36) *
In short I think the OP has a solid defence on the basis that no NIP was served on him, and thanks to the letter from the police he is in a position to prove that.

It appears so from what we know. Just want to be sure there's 'no surprises' for the OP.

The 'out' I was referring to is in section 2. (Which more covers situations where the OP contributes to the failure of the delivery, such as not updating their v5)
Parky650s
With the photos in front of you, very easy. Unfortunately you're not entitled to any evidence until you plead NG in court.

I was led to believe they have to disclose evidence upon request at least 14 days before trial.
After seeing evidence ,if it's indesputable,can I change my plea after studying the evidence.

Lived here since 2004 V5 registered in 2011.No probs there,dvla send tax reminder every six months.
peterguk
QUOTE (Parky650s @ Sat, 12 Sep 2015 - 21:09) *
With the photos in front of you, very easy. Unfortunately you're not entitled to any evidence until you plead NG in court.

I was led to believe they have to disclose evidence upon request at least 14 days before trial.
After seeing evidence ,if it's indesputable,can I change my plea after studying the evidence.

Lived here since 2004 V5 registered in 2011.No probs there,dvla send tax reminder every six months.


Are you reading the thread? Your defence will be that no NIP was correctly served.

BTW, if you use the "quote" button when replying, we'll be able to understand your replies better.
southpaw82
QUOTE (Parky650s @ Sat, 12 Sep 2015 - 21:02) *
There is no obligation to send subsequent notices/reminders by 1st class post

They resent the wrongly delivered one not a subsequent one.
What is your opinion on the witness statement saying it was sent first class yet the reply letter says second class.One of them must be lying in that office.

Are they not saying in the witness statement that the second one was sent second class, not the first?

More likely to be mistaken than lying TBH.
Logician
QUOTE (peterguk @ Sat, 12 Sep 2015 - 20:52) *
QUOTE (Parky650s @ Sat, 12 Sep 2015 - 20:50) *
Upon resending when the urgency of the matter was needed,they admit to second class postage.
There is no obligation to send subsequent notices/reminders by 1st class post.


That is true if the first NIP has been served on the RK, in this case the first NIP was not served on the RK, as evidenced by the police letter which rebuts any presumption of delivery. It is not deemed served despite non-delivery, because it was sent first class post, not registered or recorded. Therefore it is a nullity and the if the NIP was to be properly served on the RK it had to be sent again (or a similar document) by one of the postage methods allowed, but it was not, according to the police letter, it was sent second class and probably in fact too late even if sent first class.

Parky650s
QUOTE (peterguk @ Sat, 12 Sep 2015 - 21:33) *
QUOTE (Parky650s @ Sat, 12 Sep 2015 - 21:09) *
With the photos in front of you, very easy. Unfortunately you're not entitled to any evidence until you plead NG in court.

I was led to believe they have to disclose evidence upon request at least 14 days before trial.
After seeing evidence ,if it's indesputable,can I change my plea after studying the evidence.

Lived here since 2004 V5 registered in 2011.No probs there,dvla send tax reminder every six months.


Are you reading the thread? Your defence will be that no NIP was correctly served.

BTW, if you use the "quote" button when replying, we'll be able to understand your replies better.


Yes I am reading the thread.I had realised that but so many people don't seem to have read the facts I stated.You mentioned the inability to question the photos and other cars around me.What I was trying to find out was if I could change my plea if after the first line of defence (NIP incorrect) didn't work and the photos didn't work then can I change my plea or am I stuck with a not guilty plea.
I'm just trying to be covered from all eventualities and am grateful for the knowledge here.
Jlc
It is more likely you were speeding - the secondary evidence will probably corroborate that. But what Peter is saying is that the speeding matter is irrelevant if the NIP was not served correctly.

By saying that if you fail that hurdle then you'd like to go on to challenge the speeding allegation is not going to go down well - especially as any maintained not guilty plea will need you to not ambush the prosecution.

You can change your plea should you wish but this reduces the amount of discount iirc. It's not a game of them showing their hand prior to making a plea.

Personally, you appear to have a realistic defence on the service grounds so I'd avoid trying to undermine the speeding.
Gan
It looks like textbook Glidden if the OP's correct that the NIP was resent on Day 13

It was already too late to send by First Class post because it wouldn't arrive until Day 15

Knowing that First Class wouldn't meet the requirement to serve the notice within 14 days, all the police had to do was send it by Recorded Delivery when it would have been deemed served the day they sent it.

For want of a nail....
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