Barker Gotelee

No....it is not quite a simple as that!  However, some drivers may avoid prosecution or fixed penalty offers as a result of postal delays.

Some of you may have read in the press over the last week about the recent case in which a driver had his speeding overturned because the police failed to serve him with his Notice of Prosecution (NIP) on time.  This is the case of Gidden v Chief Constable of Humberside, (DC, 29 October 2009).  The driver had been sent a NIP by first class post but due to postal strikes it did not arrive until 16 days after the offence.

The law requires that for certain offences (including speeding) a defendant must either have been warned of the possibility of prosecution at the time or must have been served with a summons within 14 days or a notice of the possibility of prosecution must have been sent within 14 days (to the driver or the registered keeper).  In most cases the latter option will apply, not least since speeding will be invariably detected by speed cameras and the driver will have no direct contact with the police at that stage.

The NIP should be sent out by the police so that it will reach the person to whom it is addressed (the registered keeper or the driver) within the 14 day limit, taking into account the ordinary (!) post.  Therefore a notice sent out at the very end of the 14 day period (which starts the day after the alleged offence) may be unlikely to arrive within the time limit and the driver may argue non-receipt of the notice within time to invalidate any subsequent prosecution.  There is established case-law in this area. Difficulties may arise for the police during periods of industrial action and when there are public holidays with large volumes of post e.g. Christmas.

In the Gidden case the High Court had to decide whether a notice of intended prosecution should be regarded as having been properly served where the notice was sent by first class ordinary post on a date that would normally lead to it being delivered within the 14-day time limit but where the court was satisfied that it was in fact delivered after the 14-day time limit.  The problem had arisen in the context of a previous postal strike.  The court held that, except for NIPs sent by registered post or recorded delivery, it is possible for a driver to rebut the presumption of delivery within time.
 
The law makes certain presumptions about the postal service so that if a letter is sent out it is assumed in law to have arrived unless the contrary is proved - to make the police prove in every single case that the NIP had arrived would be unworkable and unreasonable.  A further assumption is that postal service by first or second class post will take a certain amount of time to arrive.  It should be posted so that it would ordinarily reach the address within the 14 days.

What does this mean in the context of the current postal strike?  It means that the police will have to ensure they send out any notices as promptly as possible after the alleged offence - if they do not do so and the notices are only dispatched late in the 14 day period arriving after the deadline then the driver can argue the NIP has not been properly served on time and hence any subsequent proceedings are not lawfully brought.  It will still be for the driver to raise the issue of non-receipt of the NIP as a defence and write to the police about this (when the notice arrives after the 14 deadline) to pre-empt a prosecution or raise it in court as the defence.

Tim Ridyard

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