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Leah266
NIP Details and Circumstances
What is the name of the Constabulary? -
Date of the offence: - January 2017
Date of the NIP: - 44 days after the offence
Date you received the NIP: - 73 days after the offence
Location of offence (exact location as it appears on the NIP: important): - A38 Gloucester Rd North (SB), Filton, S Glos, UK
Was the NIP addressed to you? - No
Was the NIP sent by first class post, second class or recorded delivery? - First
If your are not the Registered Keeper, what is your relationship to the vehicle? - Work car rented through enterprise
How many current points do you have? - 0
Provide a description of events (if you know what happened) telling us as much about the incident as possible - some things that may seem trivial to you may be important, so don't leave anything out. Please do not post personal details for obvious reasons - I recall that I attended the area for work but am not familiar with the area or the vehicle and was driving quite tentatively to try and spot my destination so would be surprised if I had been speeding, NIP states I was doing 36 in a 30 but I didn't see a camera flashing at the time and no photos were included.

I have lived at my current address for 10 years and the DVLA have my correct details but I assume that the NIP was sent to Enterprise first who provided my details and that they have given the wrong information as the NIP was addressed to my name, but to the address of the flat next door meaning I have just received it today over a month after it was sent.

I've missed the deadline to reply now and assume I'm about to get a scary letter in the post, is there anything I can do as the NIP was wrongly sent to an address I've never lived at? The flat next door is empty a lot, lots of new neighbours who probably didn't even know my name so just assumed it was post for a previous occupant.

Thanks for your help in advance!


NIP Wizard Responses
These were the responses used by the Wizard to arrive at its recommendation:
Have you received a NIP? - Yes
Are you the Registered Keeper of the vehicle concerned (is your name and address on the V5/V5C)? - No
Is the NIP addressed to you personally? - No
- Yes

NIP Wizard Recommendation
Based on these responses the Wizard suggested that this course of action should be considered:

Generated by the PePiPoo NIP Wizard v3.3.2: Thu, 23 Mar 2017 21:11:08 +0000
notmeatloaf
If you send back the letter now with a brief covering note explaining why it is late (not anything else, not anything saying you do not think you were speeding, keep it one paragraph) then it is highly likely it will be accepted as normal and you will receive an offer of a speed awareness course or a 3pts/£100 fixed penalty.

Normally you could ask for photos on the pretence of identifying the driver to confirm the speed, but that ship has sailed and it is almost certain that they are correct unfortunately.
Leah266
Thanks for replying, haven't I got a case to argue that the fine should be invalid because it was served incorrectly though? I thought they had a duty to serve it within a certain time and to make sure that it's definitely sent to the person it applies to which they didn't ensure in my case?
southpaw82
QUOTE (Leah266 @ Thu, 23 Mar 2017 - 22:52) *
Thanks for replying, haven't I got a case to argue that the fine should be invalid because it was served incorrectly though? I thought they had a duty to serve it within a certain time and to make sure that it's definitely sent to the person it applies to which they didn't ensure in my case?

Only an NIP has to be served within 14 days (on the registered keeper or driver). That won't have been to you, so that time limit doesn't apply.

If they've served the s 172 notice on your last known address (i.e. the one given to them by the hire company) it'd be difficult to argue that it wasn't addressed to you. Any requirement to "make sure it's definitely sent to the person it applies to" is a figment of your imagination.
andy_foster
There is no "fine" at this stage.

There is a statutory defence if the police fail to serve a NIP on the driver or RK within the 14 days (subject to certain exceptions). If the original NIP to the RK was served in good time, then there is no requirement to serve any subsequent NIP, so the issues regarding the service or otherwise of your NIP do not constitute a defence per se.

There is however a secondary issue - the NIPs incorporate a requirement under s. 172 RTA 1988. If such a notice is lawfully served on you, you are required by law to name the driver (6 points and a big fine if you don't) - and that nomination/admission then forms a crucial part of the prosecution case against you (if they can't prove that you were driving, they can't prove that you were speeding).

If the prosecution can show that an s. 172 notice was sent to you at your last known address, by prepaid first class post, it is deemed to have been served on you 2 working days later, unless you are able to prove otherwise (on the balance of probabilities).

Your case raises a number of issues which are discussed here frequently, but do not seem to have a definitive answer.

I am very much of the opinion that your last known address cannot be an address which has never been an address for service for you, or somewhere where you have lived, or somewhere that you have listed as such an address. Case law regarding last known addresses seems to be confined to notices sent to addresses which were previously proper addresses for service for service for the recipient, where the sender could not have been expected to know was no longer current. Quite simply, it cannot be a "known" address is it was never correct - you cannot "know" something which is not true (Iaciofano v DPP).

The other issue is whether service by prescribed methods is exhaustive or permissive - if a notice finds its way to you other than directly by a prescribed method, is it legally served?
peterguk
QUOTE (southpaw82 @ Thu, 23 Mar 2017 - 23:04) *
If they've served the s 172 notice on your last known address (i.e. the one given to them by the hire company) it'd be difficult to argue that it wasn't addressed to you.


SP. If the address supplied by the hire company was incorrect (i.e. they had the correct address, but supplied incorrect address), can it be argued it was addressed to OP?
southpaw82
QUOTE (peterguk @ Thu, 23 Mar 2017 - 23:31) *
QUOTE (southpaw82 @ Thu, 23 Mar 2017 - 23:04) *
If they've served the s 172 notice on your last known address (i.e. the one given to them by the hire company) it'd be difficult to argue that it wasn't addressed to you.


SP. If the address supplied by the hire company was incorrect (i.e. they had the correct address, but supplied incorrect address), can it be argued it was addressed to OP?

I'd argue that it was (subject to any binding decision on the point). I can't see a court allowing a defendant to walk on such a technicality but you never know. One to test if you're at risk of totting I think.
peterguk
QUOTE (southpaw82 @ Thu, 23 Mar 2017 - 23:54) *
QUOTE (peterguk @ Thu, 23 Mar 2017 - 23:31) *
QUOTE (southpaw82 @ Thu, 23 Mar 2017 - 23:04) *
If they've served the s 172 notice on your last known address (i.e. the one given to them by the hire company) it'd be difficult to argue that it wasn't addressed to you.


SP. If the address supplied by the hire company was incorrect (i.e. they had the correct address, but supplied incorrect address), can it be argued it was addressed to OP?

I'd argue that it was (subject to any binding decision on the point). I can't see a court allowing a defendant to walk on such a technicality but you never know. One to test if you're at risk of totting I think.


If he had not received it all all due to the incorrect address, he would have had a sound defence to a charge of FtF. So how can it be argued it was correctly addressed?

Or are you saying the fact he received it is what matters?
andy_foster
QUOTE (peterguk @ Fri, 24 Mar 2017 - 00:00) *
If he had not received it all all due to the incorrect address, he would have had a sound defence to a charge of FtF. So how can it be argued it was correctly addressed?

Or are you saying the fact he received it is all that matters?


If she did not receive it, it would seem to be fairly easy to rebut any presumption of service due to the fact that it was incorrectly addressed. However, I would say that there should be no presumption of service to begin with (assuming that it has been established that the address was wrong).

Where a notice is purely for information, e.g. a NIP, then it seems perfectly reasonable that all the police need to do (unless the postal service cause the problem) is to be reasonably diligent in attempting to ascertain the keeper's address. However, where a relatively serious offence is committed through inaction during a period after service of a notice, I would suggest that it cannot be right that the offence is prima facie committed if the notice is sent to an entirely unrelated address. The accused is charged with recklessly not living at an address she had no reason to ever have lived at. I accept that there would still be the statutory defence, but that does not make it right.
southpaw82
QUOTE (andy_foster @ Fri, 24 Mar 2017 - 00:12) *
Where a notice is purely for information, e.g. a NIP, then it seems perfectly reasonable that all the police need to do (unless the postal service cause the problem) is to be reasonably diligent in attempting to ascertain the keeper's address. However, where a relatively serious offence is committed through inaction during a period after service of a notice, I would suggest that it cannot be right that the offence is prima facie committed if the notice is sent to an entirely unrelated address. The accused is charged with recklessly not living at an address she had no reason to ever have lived at. I accept that there would still be the statutory defence, but that does not make it right.

I tend to agree but I lack the faith that higher courts would rule that way.

To Peter's point, service of the s 172 is governed by Part 4 of the Criminal Procedure Rules, specifically r 4.4 under which the address for service on an individual is "an address where it is reasonably believed that he or she will receive it". If the s 172 notice is to be used as evidence under s 12 of the Road Traffic Offenders Act 1988 then it must be served on an individual by post in accordance with r 4.4(1) and (2)(a) by virtue of r 4.7(2)(a).

If the police use an address supplied to them by a hire company RK and have no reason to doubt it why would that not be "an address where it is reasonably believed that he or she will receive it"?

It might be useful to consider this passage from R (Purnell) v Snaresbrook Crown Court, albeit the facts aren't identical (paragraph 22)

QUOTE
Against that background, I agree with the submissions made on behalf of the interested party that, reading the relevant subsections as a whole, section 172 provides that the requirement on the keeper of a vehicle to provide the relevant information arises once a Notice has been sent to his last known address, which (as here) will almost inevitably be the address at which he is the registered keeper. Once a Notice has been so sent, a keeper is guilty of an offence if he fails to provide the requisite information within 28 days unless, on a balance of probabilities, he can establish a statutory defence under subsection (7) (for example, under subsection (7)(b) that it was not reasonably practicable to give the information because the notice was never delivered to the registered address), or under subsection (4) (for example, that despite receiving the Notice he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was at the material time).


Here, the last known address (or address at which it is reasonably believed etc to use the words of r 4.4) was used (albeit not the RK address, as the recipient was not the RK), so a presumption of service seems to arise. Lack of a response gives rise to an offence and the defence under ss (7)(b) would be difficult if the notice did in fact arrive with the defendant. No comment as to ss (4).
andy_foster
This would appear to be one of those judgments where some matters not absolutely crucial to the disposition of the appeal were addressed imprecisely.

As it cannot be argued that s. 7 Interpretation Act does not apply to s. 172 RTA 1988, and s. 172(7) itself refers to the notice being "served", it cannot properly be argued that the passage is literally correct. If the notice is not delivered, it is not served and subsection (7) is never engaged. However, for practical purposes where the notice is posted to the correct address, any distinction between rebutting service through s. 7 Interpretation Act and establishing that it was not reasonably practicable would seem to be academic - in either case the burden of proof falls on the defence, and if the court finds as fact (on the balance of probabilities) that the notice was not delivered, a defence is made out.

If it were arguable that the mere sending of the notice and subsequent 'failure' to provide the information created the actual offence, as opposed to sufficient evidence if not rebutted, then that would be a different matter.

It seems to me that the requirements of Rule 4.4 would only apply for the purposes of adducing the response under s. 12(1), and cannot over-ride the primary legislation as regards the construction of an s. 172 offence.

That said, I do distinctly recall a High Court Judge finding that the wording and clear intention of the original incarnation of s. 20 RTOA 1988 was of no assistance in determining Parliament's intention as regards the amended incarnation.
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