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Tim46
I received a NIP stating 'COPY', with an accompanying letter telling me I didn't reply to the original. But I never received the original, and this COPY arrived more than 14 days after the alleged speeding offence. If I am to challenge this, I will have to go to Court. Is it worth it? What sort of costs would be involved if I lose my appeal, etc.

Note:
I have lived at my address for 12+ years. I regularly receive parcels from locations across the world (related to my record collecting hobby). Not once in all that time has any post addressed to me ever been lost in the post. It seems quite odd to me that I wouldn't have received the original NIP if it had been posted in good time.

Many thanks in advance.

Tim







The Rookie
It's vanishingly unlikely the Police will just accept it, so yes you would be defending it in court, although it would be a defence and not an appeal (nothing has yet happened to appeal).

The law states something sent by first class post is served unless the contrary is proven, proving a negative is of course hard and it's only your verbal testimony (plus any witnesses) you can fall back on.

If you lose in court (which I'm afraid is likely) you'll be looking at prosecution costs of £620 instead of £85 (assuming your case went to court anyway) plus you'd lose the fine discount of 1/3 for a guilty plea.

The fact everything else arrives actually makes your defence harder versus having regular mail issues you have already reported to the RM.

If the speed qualifies for an awareness course it would almost certainly be foolish to take it to court, even if it's a fixed penalty I'd advise against it, if the speed is high enough to end in court anyway then it may be worth a punt, the alleged speed and limit are?
Jlc
Just to add to the above, the driver needs naming regardless (even if the NIP is 'late'). It's a separate offence if you do not comply.

We'd normally ask whether you have postal issues but you've answered that... is the v5 spot on?
peterguk
Don't expect an easy time in court. You can't prove you didn't receive the first NIP - all you can do is simply say you didn't receive it.

FWIW, i took my postman to court as a witness to me receiving a NIP outside of 14 days and still lost in the Mags. court!
henrik777
QUOTE (peterguk @ Mon, 25 Sep 2017 - 21:57) *
Don't expect an easy time in court. You can't prove you didn't receive the first NIP - all you can do is simply say you didn't receive it.

FWIW, i took my postman to court as a witness to me receiving a NIP outside of 14 days and still lost in the Mags. court!


From the Baillii judgement it appears that, in the crown court at least, that the fact it arrived late, wasn't the losing point ?
QUOTE
The notice of intended prosecution had been sent to him by first class ordinary post in circumstances where he would ordinarily have been expected to receive it in 14 days, but in fact it was delivered 16 days after the commission of the offence, apparently as a result of delivery delays following a postal strike. The prosecution conceded that the delivery was late.


In any case, you didn't have case law so clearly in your favour.
The Rookie
I think your missing the point, Peter G got lucky, the Magistrates found as a matter of fact that the NIP arrived in time, at the appeal the Judge found as a matter of fact it arrived out of time but then made an error in law in concluding that it didn't matter. That error in law was then a relatively easy win at the high court appeal (had the courts found the facts the other way round he would probably not have won that last appeal).

So convincing a court that the matter of fact is that it was late is not easy even when the circumstances and a witness are in your favour, solo and without a clear and convincing 'physical' backup its darn near impossible.
BertB
QUOTE (Tim46 @ Mon, 25 Sep 2017 - 17:44) *
Not once in all that time has any post addressed to me ever been lost in the post.


That you know of.

There may be quite a lot of post over the years that did not need an action, response or follow-up that didn't arrive.
Tim46
Thanks for all the comments and advice.

I did get offered a speed awareness course, so I reluctantly intend to take it.
The cost is not a big issue for me, but it would be if I was on a low income, struggling to feed my family. What I object to is the refusal to even discuss the details of an alleged offence without requesting a Court hearing. This is simply not a viable option for most people. I believe the law should be changed to require the Police to 1) send proof of an offence, and 2) send all postal communications via recorded delivery - allowing sender and recipient access to a typical 'track & trace' system on-line.






peterguk
QUOTE (Tim46 @ Tue, 26 Sep 2017 - 23:47) *
I believe the law should be changed to require the Police to send all postal communications via recorded delivery - allowing sender and recipient access to a typical 'track & trace' system on-line.


And anyone not liking the look of the envelope or are expecting a NIP will simply refuse to accept it or not go to sorting office to collect.

It is vanishingly unlikely that a first NIP was not sent. You are simply part of a sausage factory and are not going to have been singled out.
Logician
I think you need to bit a bit more realistic about the situation, a discussion is not going to progress far when they say a first NIP was sent in good time and you reply you never received it, what more can be said? If they simply accepted your word for it, they would suggest that all drivers would do the same and the system would cease to function. Recorded delivery is not used for court documents because experience showed that many people realised the letter was not going to be good news and refused to accept it, and of course many dwellings are empty during the day anyway, sending NIPs out recorded delivery would no doubt have the same difficulties.
Tim46
The simple fact is, I DIDN'T receive the NIP within 14 days - and still haven't received the original. I believe it wasn't sent. If it was, where is it? There is no way I, or anybody in the same situation, can challenge this without going to court. That has to be wrong; particularly as I may also be completely innocent of the speeding charge. My suggestion of a 'track and trace' facility is for the benefit of the Police as much as mine. It would be proof that the letter had been sent, but it would also expose their error if the letter HADN'T been sent.
The Rookie
All very interesting, but completely irrelevant really, abstract discussions go in the flame pit.

The Police will have evidence a NIP was sent in good time, they will have evidence of postage and as such the law says it is deemed served and it will be for you to rebut that presumption. No previous history or complaint of things going missing is against you, it's not an impossible task but a decidedly uphill one with a big penalty if you fail, that is the information you need before making a decision either way. If you decide to fight it you'll get all the help we can give, BUT it would be wholly wrong to not warn you of the chances and result if you fail.
Jlc
QUOTE (Tim46 @ Wed, 27 Sep 2017 - 18:10) *
I may also be completely innocent of the speeding charge.

It's an alleged speeding offence which is sufficient to start the s172 process - indeed, the request is to identify the driver (for the keeper at least) and the person convicted may not have even been driving. Bizarrely, even if you were innocent of that speeding allegation the s172 offence can still occur.

But bear in mind the speeding offence cannot normally be convicted without a guilty plea. Some lose sight of this and still want to challenge the speeding charge rather than the (usually) far more serious s172 allegation.

QUOTE (Tim46 @ Wed, 27 Sep 2017 - 18:10) *
There is no way I, or anybody in the same situation, can challenge this without going to court.

They are criminal offences - where else do you propose?
peterguk
QUOTE (Tim46 @ Wed, 27 Sep 2017 - 18:10) *
My suggestion of a 'track and trace' facility is for the benefit of the Police as much as mine. It would be proof that the letter had been sent, but it would also expose their error if the letter HADN'T been sent.


The police will be able to prove it was sent, and the law assumes it was delivered two business days following posting. So they don't need track and trace.
henrik777
QUOTE
No previous history or complaint of things going missing is against you


Mail goes missing. It's a fact of life. One could say he was due.



If you were flipping a coin and had 7/8 heads in a row many would say tails was due.
NewJudge
Since you have made your decision we’re somewhat straying into “Flame Pit” territory so I hope the Moderator will allow me a little slack to give you my view which may (or may not!) help.

QUOTE (Tim46 @ Wed, 27 Sep 2017 - 18:10) *
There is no way I, or anybody in the same situation, can challenge this without going to court.


No there is not. Effectively you are offering a statutory defence to the speeding allegation (that the original NIP was not served in time). There is nothing the police can realistically debate. They say the NIP was sent in time to be considered properly served. You say it was not. You should no more expect them to get involved in a debate over that than if they said you were doing 80mph and you said you were only doing 70mph. Each of them, if you are successful, would see you cleared of speeding and such disputed facts can only be determined by a court.

The Speed Awareness Course/Fixed Penalty options are offered at a considerable discount to the normal court penalties/costs and the reason for that is that it avoids the need for costly court intervention. But they are only available to drivers who accept the facts as alleged. Those intending to dispute any of the facts (as you are) can only have their matters heard in court.

A final point worth remembering is that the police were good enough to send a reminder. There is no legal requirement for them to do so and they could have gone straight to an allegation of “failing to provide driver’s details”. By then the offers of a course or fixed penalty would be unavailable and you would face either doing a deal in court to drop that charge in return for pleading guilty to speeding (only an option if you were driving) or proving you did not receive the NIP and request. The price of failure in these circumstances would be six points and a hefty fine.

bama
QUOTE
But they are only available to drivers who accept the facts as alleged.


I should probably know but don't. Is there a citation for this ?

I thought a SAC was the same as an FPN in that accepting it was not an admission of any kind and merely a way of disposing of the matter without liability.
The Rookie
It is, however to 'pass' you have to be constructive in the session, so while it doesn't require either an admission to all the facts or even admission to speeding, it does require you not to make a point of contesting it as well, which is maybe what he meant.
NewJudge
QUOTE (bama @ Thu, 28 Sep 2017 - 17:09) *
QUOTE
But they are only available to drivers who accept the facts as alleged.


I should probably know but don't. Is there a citation for this ?


You don't need a citation. It's straightforward. If the driver wants to dispute any of the facts alleged or intends to defend the matter on the basis of a late or non-existent NIP then he must opt for a court hearing. Accepting a course or Fixed Penalty means he cannot launch those challenges and effectively he accepts the allegation as it stands.

QUOTE (bama @ Thu, 28 Sep 2017 - 17:09) *
I thought a SAC was the same as an FPN in that accepting it was not an admission of any kind and merely a way of disposing of the matter without liability.


The driver does not have to admit committing an offence. But if he denies any significant aspects of the allegation he will face a court visit.
bama
Sorry NJ, I believe your logic is faulty
See Gore
http://www.bailii.org/ew/cases/EWCA/Crim/2009/1424.html

e.g.
QUOTE
11 The penalty notice scheme provides a useful method for dealing with low level crime, for example, the sort of public disorder which occurs in city centres at night, which is troublesome and anti-social, without involving serious criminality. Payment of the penalty involves no admission of guilt on the part of the person to whom it is given, nor does it create a criminal record. These are important limitations.


and:
If the notice was accepted, payment of the penalty provided that no further action could be taken. The notice was distinct from a caution, where commission of a crime was acknowledged. Its issue was not a form of justice, as justice normally included guilt. It was not a conviction, admission of guilt, any proof that a crime had been committed, or a stain on the persons character. It therefore followed that it was not admissible as an admission of an offence or of bad character in the sense of impugning the defendant’s character.

And there is just the, what I think is self evident, aspect of it being merely a Notice viz:
The issuance of a notice is not a form of determination of any facts, as determination of the facts involves a prescribed judicial proceeding.
NewJudge
Speeding motorists do not received Penalty Charge Notices.

However you are correct in that a motorist who accepts a Fixed Penalty Offer does not suffer a conviction. Nonetheless it is incumbent on him to accept the allegation as it stands (e.g."We served you a NIP within 14 days and it is alleged that you traveled at 90mph in a 70 mph limit"). However, if he challenges any significant aspect of the allegation he must go to court to do so and will no longer be eligible to accept the fixed penalty. So whilst he does not have to formally accept the facts as alleged the only place he can challenge them is in court.
cp8759
QUOTE (NewJudge @ Fri, 29 Sep 2017 - 18:37) *
Speeding motorists do not received Penalty Charge Notices.

But Gore is about Fixed Penalty Notices, not Penalty Charge Notices.

QUOTE (NewJudge @ Fri, 29 Sep 2017 - 18:37) *
However you are correct in that a motorist who accepts a Fixed Penalty Offer does not suffer a conviction. Nonetheless it is incumbent on him to accept the allegation as it stands....

Do you have any source for this? Unless they've recently changed, speeding FPNs explicitly state that by paying the penalty the motorist is not making any admission of guilt, I don't see how this translates to "accepting the allegation as it stands".
NewJudge
QUOTE (cp8759 @ Fri, 29 Sep 2017 - 19:18) *
...speeding FPNs explicitly state that by paying the penalty the motorist is not making any admission of guilt, I don't see how this translates to "accepting the allegation as it stands".


Then it's a matter of semantics. Why would a driver accept a Fixed Penalty if he disagrees with the allegation? And how does he resolve such disagreements and still have the option of a Fixed Penalty? No, it's not a conviction. No it's not an admission of guilt. No it's not a formal acceptance of the allegation. But generally to challenge the allegation he loses the option of a Fixed Penalty so in my mind that indicates he accepts the facts as alleged (even if he does not sign a piece of paper to that effect). I accept that there may be occasions where the police/Partnership might make limited enquiries if the driver suggests, say, it was not his vehicle. But that would not usually go beyond checking for a plate mis-read.


southpaw82
More to the point, why is it relevant to this thread?
NewJudge
QUOTE (southpaw82 @ Fri, 29 Sep 2017 - 21:55) *
More to the point, why is it relevant to this thread?


I suppose it stems from the OP remarking that he cannot state his case without going to court. ("There is no way I, or anybody in the same situation, can challenge this without going to court."). But I agree it is coming dangerously close to the point where your sword is removed from its scabbard so enough said. wink.gif
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