Confusion at Magistrate court and wrong address

TooManyPoints

the answer to your question is yes.

But it's not, actually, is it?

He found out directly from the police 2 days before the hearing that the hearing was to take place.

The reason I asked the question is that the remedy if he was unaware of the proceedings is to perform a "Statutory Declaration". This would have the effect of nullifying any sentence imposed (and so would call off the bailiffs) and treating the hearing as if it had never occurred. 

As it is now, his remedy must lie with Section 142 of the Magistrates' Court Act. This gives a court the power to re-open cases where they believe it is in the interests of justice to do so. The court has the power to set aside or modify any sentences or orders made by the court.

The issue in his case will initially turn on the service of a "Notice of Intended Prosecution" (NIP). Provided no accident occurred,  a NIP must be served on the vehicle's Registered Keeper (RK) within 14 days of the alleged offence. The legislation (Section 1 of the Road Traffic Act) says that service is satisfied "by sending it by registered post, recorded delivery service or first class post addressed to him at his last known address."

If it can be shown that it was sent to the wrong address then "good service" is not completed and he cannot be convicted.

He should apply to have his case reopened anyway because it is likely that he has been over fined. Apart from having to take his income into account, the court must also allow a one third discount for a guilty plea.

Whether or not to reopen a case is judicial decision which must be taken by magistrates. It is not something that can be rejected by administrative staff. There is often some difficulty getting past the court scribes but he must be persistent. I would advise him against mentioning the word "appeal" as this often immediately prompts them to respond by saying an application must be made to the Crown Court (which would be correct if he wanted to appeal, but he doesn't). The difficulty I see him having in getting the court to agree to reopen his case is the fact that he did know about the hearing. That said, he contacted the court as soon as he found out. At the same time as making his application to reopen, he should make enquiries about why his documents went to the wrong address.

You should note that the court is not involved in issuing a summons (or similar). The notification of court proceedings, which is usually by way of a "Single Justice Procedure Notice" (SJPN), is issued by the police. He needs to find out what happened to that and what happened to his NIP.

By all means pop this onto FTLA. I look into there as well so I'll keep a lookout. Be sure to mention that he was made aware of the hearing, even though it was by the police as this is important

beauty_in_colour

@TooManyPoints - thank you so much. I feel like we are at least getting somewhere as initially it seemed bewildering with no place to turn. I have posted on the FTLA as well. I completely understand what you are saying and agree the case should be reopened. 

I guess my question now is how do we go about getting the case reopened. When I called the court yesterday I spoke with an admin person called Ben who said he would look out for my email - he even quoted the email address I’d be sending it from… I got an automated reply and since then nothing. 

The next step for us is how to go about getting the case reopened. Thank you so much once again. 

TooManyPoints

Send an e-mail for the attention of "The Clerk to the Justices". That post was actually abolished about five or six years ago but nobody seems to know what position replaced it. But that should get it to the right place. Follow it up with a snail mail. 

Explain the odyssey. In particular say that no SJPN was received and that, as a result,  no prosecution evidence was provided. As I say, be prepared for some "obstruction". As a result you would like the case to be reopened under s142.

I'll be interested to see what those on FTLA have to say. 

sheramber

TooManyPoints said:

the answer to your question is yes.

But it's not, actually, is it?

He found out directly from the police 2 days before the hearing that the hearing was to take place.

The reason I asked the question is that the remedy if he was unaware of the proceedings is to perform a "Statutory Declaration". This would have the effect of nullifying any sentence imposed (and so would call off the bailiffs) and treating the hearing as if it had never occurred. 

As it is now, his remedy must lie with Section 142 of the Magistrates' Court Act. This gives a court the power to re-open cases where they believe it is in the interests of justice to do so. The court has the power to set aside or modify any sentences or orders made by the court.

The issue in his case will initially turn on the service of a "Notice of Intended Prosecution" (NIP). Provided no accident occurred,  a NIP must be served on the vehicle's Registered Keeper (RK) within 14 days of the alleged offence. The legislation (Section 1 of the Road Traffic Act) says that service is satisfied "by sending it by registered post, recorded delivery service or first class post addressed to him at his last known address."

If it can be shown that it was sent to the wrong address then "good service" is not completed and he cannot be convicted.

He should apply to have his case reopened anyway because it is likely that he has been over fined. Apart from having to take his income into account, the court must also allow a one third discount for a guilty plea.

Whether or not to reopen a case is judicial decision which must be taken by magistrates. It is not something that can be rejected by administrative staff. There is often some difficulty getting past the court scribes but he must be persistent. I would advise him against mentioning the word "appeal" as this often immediately prompts them to respond by saying an application must be made to the Crown Court (which would be correct if he wanted to appeal, but he doesn't). The difficulty I see him having in getting the court to agree to reopen his case is the fact that he did know about the hearing. That said, he contacted the court as soon as he found out. At the same time as making his application to reopen, he should make enquiries about why his documents went to the wrong address.

You should note that the court is not involved in issuing a summons (or similar). The notification of court proceedings, which is usually by way of a "Single Justice Procedure Notice" (SJPN), is issued by the police. He needs to find out what happened to that and what happened to his NIP.

By all means pop this onto FTLA. I look into there as well so I'll keep a lookout. Be sure to mention that he was made aware of the hearing, even though it was by the police as this is important

The issue in his case will initially turn on the service of a "Notice of Intended Prosecution" (NIP). Provided no accident occurred,  a NIP must be served on the vehicle's Registered Keeper (RK) within 14 days of the alleged offence. The legislation (Section 1 of the Road Traffic Act) says that service is satisfied "by sending it by registered post, recorded delivery service or first class post addressed to him at his last known address."

Which was sent to the company as it is a comapny car.

They passed it to the OP's son, who replied to it.

TooManyPoints

Which was sent to the company as it is a comapny car.

Sorry, I'd overlooked that.

The NIP to the RK is the only one required by law, so forget what I said about that being the issue.

The justification for reopening remains, however. Once he has agreement to that he can consider his position. In particular, he should be provided with the evidence the prosecution intend to rely on to secure a conviction (which accompanies the SJPN). If he believes he is guilty, there is the issue of how much he has been fined. Do you have those details?

Just to recap, are you saying the NIP and "request for driver's details" got to him OK, but nothing else did?  

Okell

beauty_in_colour said:

Than many thanks for your comments. My son’s vehicle is a company car so not registered to his address. The original police notification was sent to his work address and they passed it on to him. He then completed the form and returned it to the police. The police appear to have recorded an incorrect address right at the beginning using no 13 instead of no 3. We have a text message record of the police asking for his correct address which they confirmed but still all the documents were sent to no 13, so my son never received any paper work. 

Just to clarify - did your son's employer simply pass the original request to name the driver onto your son for him to complete on his employer's behalf, or did your son's employer name your son as the driver, and your son subsequently received a request/notice in his own name?

I note on FTLA that you say your son is dyslexic.  Don't take this the wrong way, but if your son simply answered the original request that his employer had "passed onto him", are you 100% certain that he gave the correct address to the police?  (Sorry for asking)

born_again

beauty_in_colour said:

@TooManyPoints the answer to your question is yes. My son did not receive any notification directly from the court. Had he received one, he would have been more than happy to enter an early guilty plea and deal with the matter.
He found out directly from the police 2 days before the hearing that the hearing was to take place. The policeman then emailed him a copy of the court documents which is where we noticed the incorrect address. We promptly wrote to the court both via email and recorded delivery to highlight the error. The court emailed back to acknowledge receipt of the email and to state it was on file. We heard nothing more until the bailiff text messages. Hope this explains things. Please let me know if you have any more questions 

While I get the address was wrong. Given your son knew that was due in court in 2 days, thanks to the police letting him know. Why did he not attend?

As it seems the case went ahead in his absence. Hence the bailiff's now.

TooManyPoints

Given your son knew that was due in court in 2 days, thanks to the police letting him know. Why did he not attend?

It was almost certainly a "Single Justice" hearing, which he could not attend if he wanted to.

This is becoming a bit confusing now as further information has come to light on FTLA which may throw a different light on the matter.

beauty_in_colour

I’m so sorry and don’t mean to confuse anyone. I had a long chat with my son this morning just to go over the facts and he sent me the details. The court papers indicated he could enter a plea without attending court. This he did along with stating that had he received the summons in good time and to the correct address he would have entered an early plea. Please not the address on the court summons was incorrect and on the form we filled in with the summons, we stated as much ie guilty plea, wrong address etc. Still absolutely nothin was received from the court until the bailiff text messages.
Do please let me know where I’ve caused confusion and I’ll do my best to redress the situation. Many thanks Anne 

beauty_in_colour

@born_again the court summons stated he did not need to attend court if he was entering a guilty plea. Attendance was optional. He had always intended to plead guilty and he felt sending the plea by post (recorded) plus updated address details plus explanation stating given the opportunity it would have been an early guilty plea, would be sufficient. Hindsight tells us differently.