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generaldbody
Hi folks

Got a Intention to Prosecute from Essex Police.

Help!

Am I correct in stating that I am obliged to identify the driver of the vehicle?

The driver was NOT me but my partner. (This is going to make for an interesting discussion when she gets home from work this evening)

Does she have any way out of this? What options might she have?

Kind regards,

GDB
Jlc
QUOTE (generaldbody @ Wed, 17 Feb 2016 - 13:08) *
Am I correct in stating that I am obliged to identify the driver of the vehicle?

If you don't you'll likely receive an invite to court for failing to furnish where the prize is 6 points and a large fine. There is a statutory defence if you cannot, with reasonable diligence, name the driver but...

QUOTE (generaldbody @ Wed, 17 Feb 2016 - 13:08) *
The driver was NOT me but my partner. (This is going to make for an interesting discussion when she gets home from work this evening)

...you know who the driver was.

QUOTE (generaldbody @ Wed, 17 Feb 2016 - 13:08) *
Does she have any way out of this? What options might she have?

If the offence was committed then there's unlikely to be a defence. A course will likely be offered to avoid the points.
bill w
Also read the paperwork carefully, making sure you comply with it exactly.
The likelihood is, that you will need to reply as the registered keeper, naming the driver on the day, and your partner will then get her own NIP.

Some forces apparently do have the option of allowing the actual driver to reply on the registered keepers NIP, if they live at the same address, presumably to cover circumstances such as yours.
If this isn't the case on your NIP, don't try and short-cut the system, by getting your wife to fill in your NIP, as it can end badly.
generaldbody
Ta to you both.

I hope that they offer the course! Btw does driver rehab avoid any endorsements/points on the licence? Would she have to inform her motor insurer?

Thanks again,

GDB
Jlc
Yes, the course (rehab, ha!) avoids the points. Some insurers do ask - Admiral group primarily.
generaldbody
Thanks Jlc
generaldbody
So I tell the Mrs...

"Are you sure that was me driving?!?" she says... We were both driving the car that trip!

What if I'm not certain? What do I do now? Can I take the points - can the wrong person take the points?

southpaw82
QUOTE (generaldbody @ Wed, 17 Feb 2016 - 20:34) *
What if I'm not certain? What do I do now? Can I take the points - can the wrong person take the points?

If you innocently name the wrong driver and the police can prove it you can be prosecuted for the s. 172 offence.

If you deliberately name the wrong driver and the police can prove it you'll likely go to prison.

If you honestly can't remember then you can either say so and fight the inevitable s. 172 charge or name the most likely driver and take the hit for speeding.

If it's a "really good idea to get out of speeding, guv" I refer you to Chris Huhne.
generaldbody
Thanks - it is what we thought.

We were just discussing who should take the hit...

...rock paper scissors seems to be method of choice...

...all we have to do is decide how many rounds it's going to be - best of 3..?

Surely some people must genuinely not be sure? What if you don't live in the area?

Anyway that doesn't apply here because that's not a road I want to go down - if you pardon the pun!
peterguk
QUOTE (generaldbody @ Wed, 17 Feb 2016 - 20:52) *
We were just discussing who should take the hit...


Huh?

QUOTE (generaldbody @ Wed, 17 Feb 2016 - 13:08) *
The driver was NOT me but my partner.
Jlc
I mentioned the statutory defence in my previous post. If you 'genuinely' can't work it out using reasonable diligence then you have the option to try and convince the court. Given the disparity in sentencing (and the need to attend court), naming the most likely driver is often the pragmatic thing to do as it's a difficult task but not impossible.
generaldbody
QUOTE (peterguk @ Wed, 17 Feb 2016 - 20:59) *
QUOTE (generaldbody @ Wed, 17 Feb 2016 - 20:52) *
We were just discussing who should take the hit...


Huh?

QUOTE (generaldbody @ Wed, 17 Feb 2016 - 13:08) *
The driver was NOT me but my partner.



Only because when reading the letter together I became uncertain as we did both drive the car on that trip.

By the way, I have noticed that the address on the letter is incorrect. We are in an apartment in an building which is on a road but the "number" is in the wrong place - Where it should say "101 Nelson Mandela House, Peckham High Road" it actually states "Nelson Mandela House, 101 Peckham High Road". Significant?

I'll have to check my V5 now to see if that is wrong too (that's where the address came from eh?)
peterguk
QUOTE (generaldbody @ Wed, 17 Feb 2016 - 23:43) *
I have noticed that the address on the letter is incorrect. We are in an apartment in an building which is on a road but the "number" is in the wrong place - Where it should say "101 Nelson Mandela House, Peckham High Road" it actually states "Nelson Mandela House, 101 Peckham High Road". Significant?

I'll have to check my V5 now to see if that is wrong too (that's where the address came from eh?)


You've received the NIP so any error has not disadvantaged you.

QUOTE (generaldbody @ Wed, 17 Feb 2016 - 23:43) *
Only because when reading the letter together I became uncertain as we did both drive the car on that trip.


As the journey was only a week or so ago, and you have time, location and direction, it should be easy for you and partner to work out who was driving.
nosferatu1001
Or rather, it is likely to be VERY difficult to convince a magistrate that you could NOT work out who was driving.
generaldbody
That is precisely what I was thinking!

Thanks all.
generaldbody
Next steps...

My Missus has received the NIP:

Alleged Offence 14/02
Dated 10/03
Arrived 14/03

The address on the front is wrong again despite being clear on the Section B of the previous notice to me. I am wondering whether it has taken so long to arrive because it was posted to the wrong address before being delivered (because the wrong address does exist).

All advice appreciated.
AntonyMMM
She replies confirming she was the driver, and in due course will receive an offer of a Speed Awareness Course (assuming she is eligible), or if not an FPN of £100 & 3pts.

Whether it went to the wrong address or not, she has received it - did you check the address on the V5 as you said you were going to in a previous post ?
nosferatu1001
Again, the time taken for this one to arrive is irrelevant. It arrived. If it hadn't arrived then there would be a very good defence to ftf, however that's moot - it DID arrive.
generaldbody
QUOTE (AntonyMMM @ Tue, 15 Mar 2016 - 08:40) *
did you check the address on the V5 as you said you were going to in a previous post ?


Yes the V5 was wrong and has since been sorted.

My lady will complete Section A and hopefully be offered the Awareness course...

The address thing is annoying however because I wrote the correct address on my Section B and yet it still came out wrong. I know that the NIP arrived to the right place in the end but my declaration on Section A has been ignored.

Out of interest if I wrote 22 Acacia Avenue on the Section B and they sent it to 22 Acacia Road or 2 Acacia Avenue - who would be in trouble?
Jlc
QUOTE (generaldbody @ Tue, 15 Mar 2016 - 09:41) *
Out of interest if I wrote 22 Acacia Avenue on the Section B and they sent it to 22 Acacia Road or 2 Acacia Avenue - who would be in trouble?

Depends on the exact facts but broadly if it didn't arrive and the address was (materially) wrong then the defendant would likely have a defence. (In reality we've seen such cases dropped once the error was identified)

QUOTE (generaldbody @ Tue, 15 Mar 2016 - 09:41) *
The address thing is annoying however because I wrote the correct address on my Section B and yet it still came out wrong. I know that the NIP arrived to the right place in the end but my declaration on Section A has been ignored.

Annoying indeed but it appears in the material case it hasn't disadvantaged you/her.
The Rookie
Human nature really, you wrote an address that at a glance looks the same as the RK address and they have carried it over, had it looked (at a glance) to be different they would probably have entered it correctly.
generaldbody
QUOTE (The Rookie @ Tue, 15 Mar 2016 - 10:09) *
Human nature really, you wrote an address that at a glance looks the same as the RK address and they have carried it over, had it looked (at a glance) to be different they would probably have entered it correctly.


Funnily enough that's how I must have missed the original V5 address error.


Here's the next thing - a big concern to me because failure to respond can land her in a big mess:

My lady shall fill in the Section A as per her obligation. Let's say that they ignore the second attempt to correct the address - human error/incompetence. What if any future correspondence does in fact go to the wrong address? How would we know that we had missed anything?

AntonyMMM
QUOTE (generaldbody @ Tue, 15 Mar 2016 - 10:26) *
My lady shall fill in the Section A as per her obligation. Let's say that they ignore the second attempt to correct the address - human error/incompetence. What if any future correspondence does in fact go to the wrong address? How would we know that we had missed anything?


It might be a good idea to highlight the address change on the reply , and even confirm with them later.

Delays in the process can remove the option of a Speed Awareness Course (assuming that would be her preferred option).
nosferatu1001
Covering letter, noting the address is incorrect and to please ensure all letters are sent to the address now filled in, could be an idea.
generaldbody
Covering letter sounds too simple. I suppose when you're presented with a form one gets lost as to how one should provide extra information. There's rarely a box for it!

We'll send one with the return form.

Great suggestions folks, thanks.
CuriousOrange
QUOTE (AntonyMMM @ Tue, 15 Mar 2016 - 08:40) *
Whether it went to the wrong address or not, she has received it - did you check the address on the V5 as you said you were going to in a previous post ?

It has been received, but does that mean it has been served by post if it hasn't been properly addressed bearing in mind what the Interpretation Act states?

When a correctly addressed requirement isn't received, the defence is one of it not being reasonably practicable to reply, not that it wasn't served.

For the OP, his requirement was addressed to his last known address since the V5C was wrong. That's not the case for his partner.

If the requirement hasn't been served by post then a reply wouldn't be RTOA 1988 S.12 evidence of the identity of the driver under a prosecution of the speeding offence.
The Rookie
You have it back to front, the IA can be used to prove service unless the contrary is proven, it doesn't mean it wasn't served if the IA wasn't complied with.....
CuriousOrange
If you read the Act, you'd see that "unless the contrary is proved" only applies to when service has been effected, not whether it has been effected.

Claiming that the Act proves service unless the contrary is proved is to claim that they don't even have to provide proof that they sent a requirement - it's assumed that one was served, no evidence needed.

If the letter has not been properly addressed, how is it proved served by post? Perhaps you might like to contend that served by post includes incorrectly addressed letters put through the door by the postman, but then who says the postman put this through the door, not whoever mistakenly received it? Or would you claim that anything put through a letterbox by anybody is "served by post", in which case by all means explain how 1(b) and 1© in RTOA 1988 differ.
southpaw82
QUOTE (The Rookie @ Wed, 16 Mar 2016 - 13:40) *
You have it back to front, the IA can be used to prove service unless the contrary is proven, it doesn't mean it wasn't served if the IA wasn't complied with.....

Do you have authority for the proposition that delivery = service?
The Rookie
S1A of the RTOA seems to cover it?

Can't paste it using an iPad I'm afraid.

Jlc
QUOTE
(1A)A notice required by this section to be served on any person may be served on that person—
(a)by delivering it to him;
(b)by addressing it to him and leaving it at his last known address; or
©by sending it by registered post, recorded delivery service or first class post addressed to him at his last known address.]

(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.

(3)The requirement of subsection (1) above shall in every case be deemed to have been complied with unless and until the contrary is proved.

(4)Schedule 1 to this Act shows the offences to which this section applies.
The Rookie
Thanks JLC, 1A a, it has been delivered to him and is therefor served is my interpretation, it may be delivery via a circuitous route, but delivery it is.
southpaw82
Another interpretation of "delivering it to him" is personal service, not an attempt at service under © that is botched and uses (a) to save it.

What about the 172?
The Rookie
I agree that is an alternative reading of it, but I still think in that basis it would be hard to argue lack of service.

EDITED: The S172 may be served by post, there is no mention of being properly addressed as a requirement, only for the 'purposes' of the IA, but unless The prosecution have to rely on the IA that wouldn't be relevant. That is the contradiction for me, how do you contest delivery/service without revealing you got it, in which case the IA is not needed. It will have been served even if the prosecution can't prove it?
generaldbody
QUOTE (The Rookie @ Wed, 16 Mar 2016 - 21:08) *
I agree that is an alternative reading of it, but I still think in that basis it would be hard to argue lack of service.

EDITED: The S172 may be served by post, there is no mention of being properly addressed as a requirement, only for the 'purposes' of the IA, but unless The prosecution have to rely on the IA that wouldn't be relevant. That is the contradiction for me, how do you contest delivery/service without revealing you got it, in which case the IA is not needed. It will have been served even if the prosecution can't prove it?


Ok so even though I got the Intention to Prosecute sent to the RK address on the V5C which was incorrect.
Even though I corrected this mistake when sending completed the Section B (I am not the Driver) back to the Police
Even though my correction of the address was ignored by the Police - it's still "ok" so far? "ok" = nothing procedurally (or other) improper

What happens when my missus completes her Section A (again with the address correction) and that is overlooked when:

a) The next notice (and given I've not done this ever I don;'t know what's coming) arrives to the wrong address (again)?

b) The next notice doesn't arrive (assuming it's gone to the wrong address)?

By the way, how long have they got from the original offence to prosecute?
peterguk
You don't know what will happen in the future. If it was me, i'd attach a note saying "please see correct address on form" or similar.

They have 6 months from date of offence to prosecute.
southpaw82
QUOTE (The Rookie @ Wed, 16 Mar 2016 - 21:08) *
I agree that is an alternative reading of it, but I still think in that basis it would be hard to argue lack of service.

EDITED: The S172 may be served by post, there is no mention of being properly addressed as a requirement, only for the 'purposes' of the IA, but unless The prosecution have to rely on the IA that wouldn't be relevant. That is the contradiction for me, how do you contest delivery/service without revealing you got it, in which case the IA is not needed. It will have been served even if the prosecution can't prove it?

You're still conflating delivery with service, which may or may not be correct.

There is a requirement for it to be addressed - see r. 4.4 of the CrimPR. So, the question then becomes "is lawful service effected if the notice is not correctly addressed but nevertheless is delivered?"

I suspect many courts will answer in the affirmative but it seems some posters are tired of what is a (good) guess asserted as absolute fact.
The Rookie
I'm not sure I am, the statute says if it's delivered by post its served does it not? It mentions for the purposes of the IA about correct addressing, but unless the IA is being relied on then that is mute as I see it.
southpaw82
Read your first sentence again.
The Rookie
QUOTE (southpaw82 @ Thu, 17 Mar 2016 - 00:41) *
There is a requirement for it to be addressed - see r. 4.4 of the CrimPR.

Is 4.4 missing?
http://www.legislation.gov.uk/uksi/2005/384/contents/made
Logician
QUOTE (The Rookie @ Thu, 17 Mar 2016 - 12:45) *
QUOTE (southpaw82 @ Thu, 17 Mar 2016 - 00:41) *
There is a requirement for it to be addressed - see r. 4.4 of the CrimPR.
Is 4.4 missing? http://www.legislation.gov.uk/uksi/2005/384/contents/made


The current rules are 2015 LINK or LINK

The Rookie
Thanks.....reading it
generaldbody
Ok I'm desperately trying to follow this :-)

The Criminal Procedure Rules 2015:
4.4.—(1) A document may be served by addressing it to the person to be served and leaving it at the appropriate address for service under this rule, or by sending it to that address by first class post or by the equivalent of first class post.

(2) The address for service under this rule on—

(a)an individual is an address where it is reasonably believed that he or she will receive it;

does this mean therefore

'appropriate address' = our home

'reasonably believed' = has used the correct address

Ok So I gave the correct address - which was a correction - a correction which they have ignored. And therefore the document has not been served? Is that what we're trying to get to?
peterguk
I'd be very surprised if a court found the S.172 invalid. It does have an error in the address, but has been delivered.
generaldbody
QUOTE (peterguk @ Thu, 17 Mar 2016 - 14:53) *
I'd be very surprised if a court found the S.172 invalid. It does have an error in the address, but has been delivered.


I hear that and can accept that - I'm curious as to what the folks are discussing. I'm trying to interpret their words.

CuriousOrange
QUOTE (The Rookie @ Wed, 16 Mar 2016 - 21:08) *
...how do you contest delivery/service without revealing you got it, in which case the IA is not needed. It will have been served even if the prosecution can't prove it?
The question wasn't "has it been served", the question was "has it been served by post?"

Taking the RTA and IA together, an S172 requirement can be put into a letter that is properly addressed, pre-paid and posted, and it is then deemed to be served by post.

Taking the other extreme, you can have an S172 requirement that isn't addressed, isn't stamped/pre-paid, isn't posted, but is simply dropped off at the recipient's address by P.C. Copper's best mate. I'd hope that nobody with any sense would claim this constitutes "service by post", especially since - as already pointed out once - it would contradict the need to distinguish between the methods of service that apply to a NIP.

It seems to be claimed that the line between "served by post" and merely"served" lies somewhere between the two situations above, but with no justification, no explanation of where that line is, and why it lies where it is rather than more to one end or the other.

Currently we've an S172 requirement that was placed in an incorrectly addressed envelope, and no knowledge of who put it through the door. RTOA S.12 says it has to be "proved to the satisfaction of the court...that a requirement under section 172(2)...has been served on the accussed by post" (my emphasis). How, exactly, is that supposed to be proved given this?

QUOTE (generaldbody @ Thu, 17 Mar 2016 - 15:01) *
I'm curious as to what the folks are discussing. I'm trying to interpret their words.


I'm saying there's a good argument that when your missus returns her signed form naming herself as the driver, it wouldn't be the evidence of the driver that they'd require to convict her if she chose to challenge the speeding offence in court.

Jlc
QUOTE (CuriousOrange @ Thu, 17 Mar 2016 - 15:36) *
I'm saying there's a good argument that when your missus returns her signed form naming herself as the driver, it wouldn't be the evidence of the driver that they'd require to convict her if she chose to challenge the speeding offence in court.

But would almost certainly require a fight at a higher court? I would expect a Mag's court to convict.
The Rookie
QUOTE (CuriousOrange @ Thu, 17 Mar 2016 - 16:36) *
QUOTE (The Rookie @ Wed, 16 Mar 2016 - 21:08) *
...how do you contest delivery/service without revealing you got it, in which case the IA is not needed. It will have been served even if the prosecution can't prove it?
The question wasn't "has it been served", the question was "has it been served by post?"

Not my take on it, it's been delivered (by post) but has it been lawfully served (also therefore by post).

I'm still trying to get my head round the impact of the CPR, does it apply to an S172 or a NIP as
1/ It states post by first class or equivalent, so it second class now ruled out for all notices sent out, not just the NIP to the RK? (some forces were using second class for subsequent S172 requests).
2/ It allows for hand delivery which is specifically not permitted for an S172

Is the CPR subservient to the RTA/RTOA, or has it superseded it and 'rewritten the rules'?
CuriousOrange
QUOTE (Jlc @ Thu, 17 Mar 2016 - 15:44) *
But would almost certainly require a fight at a higher court? I would expect a Mag's court to convict.
"Almost certainly?" On what experience are you basing that statement and your expectation?

QUOTE (The Rookie @ Wed, 16 Mar 2016 - 21:08) *
Not my take on it, it's been delivered (by post)...
You're stating as fact that it has been delivered by post on what basis?

Were you there, did you witness a postman putting it through the door?

Or are you claiming that a letter, delivered by a postman to the property that it's been addressed to, later taken to a second property by some unknown person and left there, has been delivered to the second property by post? In which case feel free to square that contention with the fact that the Postal Services Act 2000 S.125(3) states quite clearly that the course of transmission by post ends when the packet has been delivered to the premises to which it is addressed; never mind the implication that anybody who intentionally delayed that unknown person could be guilty of interfering with the mail.

If I bring a letter I received at home into work, has it now been delivered to my workplace by post? If I take it back home a few days later, has it been delivered by post to my home once or twice?

The Rookie
Er, it's arrived so it's been delivered, the question is whether it is service not whether it is delivered which clearly it has!
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