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DIR Return to: Speeding and other criminal offences
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#Post#: 17583--------------------------------------------------
Re: Speeding and failure to notify
DIR By: DrSatan
Date: March 18, 2024, 11:09 am
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--- Quote from: Rabrab31 link ---
>
> In Sept I was caught speeding, was sent the letter but I only
got this letter in Jan as it was sent to the wrong address
(neighbour had been holding on to it and just forgot to give it
to me).
>
--- End Quote ---
Is your neighbour willing to be a witness that this is what
happened? because if so, you've got a good defence that you
didn't fail to name the driver, in fact you did within 28 days
of receiving the letter.
You've also got a nailed-on defence to escape punishment for the
underlying speeding offence also, as the NIP wasn't delivered to
you within 14 days. A properly addressed envelope is presumed to
be delivered unless the contrary is proved, but you've got a
witness that it wasn't delivered.
#Post#: 17586--------------------------------------------------
Re: Speeding and failure to notify
DIR By: NewJudge
Date: March 18, 2024, 11:29 am
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--- Quote ---
> You've also got a nailed-on defence to escape punishment for
the underlying speeding offence also, as the NIP wasn't
delivered to you within 14 days. A properly addressed envelope
is presumed to be delivered unless the contrary is proved, but
you've got a witness that it wasn't delivered.
--- End Quote ---
I think you need to have a read up on the difference between
"delivered" and "served": Or perhaps I do (see below).
--- Quote ---
> Postie must have dropped it in next door, the address was
correct on the letter.
--- End Quote ---
--- Quote ---
> Is your neighbour willing to be a witness that this is what
happened? because if so, you've got a good defence that you
didn't fail to name the driver, in fact you did within 28 days
of receiving the letter.
--- End Quote ---
It's difficult to say for sure because details are somewhat
lacking. But I get the impression that the OP did not provide a
sufficient response to the s172 notice. It seems he went
straight to paying £100. In any event he is where he is.
The way to deal with this is to plead not guilty to both
offences. You can state in your response to the SJPN that you
would be willing to plead guilty to speeding on the condition
that the FtP charge is dropped. Some courts are accepting this
offer via the SJ process, but others may require your
attendance.
#Post#: 17593--------------------------------------------------
Re: Speeding and failure to notify
DIR By: andy_foster
Date: March 18, 2024, 12:42 pm
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Under s. 7 Interpretation Act 1978, there is a rebuttable
presumption of service for a correctly posted notice required or
permitted by an Act of Parliament, unless the Act indicates
otherwise.
Actual service is effected when it is delivered to the party's
last known address, not when it is delivered to some other
address but bearing the party's last known address, or delayed
due to a postal strike but bearing Peter Gidden's last known
address.
Technically, Gidden applies to the service of a NIP for the
purposes of s. 1 RTOA 1988 (which itself has a rebuttable
presuming provision), but it require some violence to the
language of s. 172 to argue that s. 7 IA 1978 does not apply to
the s. 172 requirement.
I make no comment regarding what did or did not happen such that
the OP was apparently able to accept a COFP without first
returning the s 172 response.
My thoughts on the distinction between providing the date of
birth to the fixed penalty clerk and providing the licence
number which (if UK issued) incorporates the driver's date of
birth, to the fixed penalty clerk is well known. However, what
actually happened in this case seemingly is far less well known.
#Post#: 17602--------------------------------------------------
Re: Speeding and failure to notify
DIR By: NewJudge
Date: March 18, 2024, 2:09 pm
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--- Quote ---
> Actual service is effected when it is delivered to the party's
last known address, not when it is delivered to some other
address but bearing the party's last known address, or delayed
due to a postal strike but bearing Peter Gidden's last known
address.
--- End Quote ---
Of course, Andy. Thanks for the correction.
--- Quote ---
> Technically, Gidden applies to the service of a NIP for the
purposes of s. 1 RTOA 1988 (which itself has a rebuttable
presuming provision), but it require some violence to the
language of s. 172 to argue that s. 7 IA 1978 does not apply to
the s. 172 requirement.
--- End Quote ---
But does that particularly matter? There seems no doubt that the
s172 notice was eventually properly served (albeit down to luck
rather than judgement). Since there is no time limit of the
service of the s172, surely the recipient still has a duty to
respond (though of course he will have a defence if accused of
not responding within 28 days). However, it seems it may be a
moot point anyway because it seems that no proper response was
made anyway and that is what he is accused of.
If he pleads Not Guilty to speeding on the basis that no NIP was
served within 14 days, that still leaves him with the problem of
the s172 charge which he seems to have no realistic chance of
defending. Of course, pleading NG to speeding scuppers the
possibility of the usual "deal". I still believe the deal is the
way to go.
#Post#: 17608--------------------------------------------------
Re: Speeding and failure to notify
DIR By: andy_foster
Date: March 18, 2024, 4:20 pm
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There would seem to be 2 potential s. 172 defences. If the OP
complied withe the substance of the legal requirements to accept
the COFP - and with the level of detail provided by the OP
regarding "the letter", this would be bound to fail, then I
would argue that it would be an abuse of process to prosecute
the OP for s. 172 - the purpose of s. 172 is to enable the
driver to be identified and prosecuted for the speeding offence.
Abuse of process would be an uphill struggle anyway, but in this
case, just no. If the police "accepted" a verbal nomination over
the phone, then no offence was committed, but if there was
merely an administrative shortcut and the written response was
still required, then not so much.
The other defence is so obvious that you'll be kicking yourself
that you never saw it.
The OP will have been charged with failing to provide
information between the issue date of "the letter" and the end
of the period of 28 days beginning with the date of deemed
service. If he takes along his witness and proves that the date
of service was substantially later, the court will simply amend
the information and convict.
So, he pleads not guilty and neglects to raise the issue of late
service. He is convicted and appeals to the Crown Court. A Crown
Court appeal is by way of re-hearing, so the court has no power
to amend the charge, but (AFAIK) there is no restriction on
adducing fresh evidence.
Simples.
#Post#: 17677--------------------------------------------------
Re: Speeding and failure to notify
DIR By: NewJudge
Date: March 19, 2024, 6:50 am
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--- Quote ---
> The other defence is so obvious that you'll be kicking
yourself that you never saw it.
--- End Quote ---
I don't know about kicking myself, Andy. It takes far greater
minds than mine to come up with such a wheeze.;D
I'm not too sure the OP would be willing to go so far as to be
(near enough deliberately) convicted and then trot off to the
Crown Court to appeal. But it's certainly a strategy worth
remembering.
Thanks again for your guidance.
#Post#: 19851--------------------------------------------------
Re: Speeding and failure to notify
DIR By: Rabrab31
Date: April 17, 2024, 1:24 pm
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Hi everyone. Thank you for your advice. As I see most people
not come back to these threads I thought I'd post my outcome.
Just for clarity, yes I had managed to pay the fine without
nominating the driver first, West Mercia have it all in one
letter, not sure if that is the norm.
I submitted my plea using the gov website. I pleaded guilty to
the speeding (ticked the box that said Guilty I would not like
to attend court). For the failure to notify I pled not guilty
(Not guilty send me a court date). This was mid March. 2 days
later the fine I paid got refunded to my bank account.
When submitting my not guilty plea I submitted screenshots of me
writing to the camera ticket office etc and just explained what
had happened.
Friday just gone (12/04) I received an email with the outcome of
my guilty plea. I received a fine of £181, victim surcharge of
£72 and costs of £90 so £343.00 to pay total & 3 points. The
email did not contain any information about the second charge.
Been away all weekend and got back today to a letter from the
magistrates court. It reiterated the amount to pay for the
speeding charge and then under the 2nd charge DVLA code MS90 it
says the offence has been withdrawn.
So I never had to go to court.
#Post#: 19854--------------------------------------------------
Re: Speeding and failure to notify
DIR By: andy_foster
Date: April 17, 2024, 2:20 pm
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Well done.
AIUI, the s. 172 will often be withdrawn on a guilty plea to the
speeding charge.
The problem is that that is not always the case.
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