Free Traffic Legal Advice
Live cases legal advice => Speeding and other criminal offences => Topic started by: SeeksJustice on April 23, 2024, 11:02:09 pm
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Well done.
I just wonder how many people get screwed over by the court staff giving inept advice they aren’t qualified or knowledgeable enough to give.
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Excellent and just result! :)
Thanks for letting us know.
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Result!
Well done
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Hi Folks,
Just a quick update on the conclusion of my case. The court determined to reopen my case this week on the basis there had been an error made in sentencing. The Prosecution offered no case. The Magistrate decided to revert the fine and costs from £1,490 to £100 and 3 penalty points, equivalent to the fixed penalty that I had received for the offence. The magistrate also acknowledged that I had understood more about procedure than the court staff had.
Thank you once again for all your learned advice on points of law and procedure as I would not have had the determination to fight the case without it.
Justice served!
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I believe HMTCS sending me details of the Appeal process is another rouse to kick the ball in to the long grass and delay proceedings with the intention of having my request refused due to the lapse in time since I was notified of the sentence.
Actually I don’t think they’re that clever, but it doesn’t really matter.
I think the problem you have encountered is precisely that which I envisaged in my post on April 24th. Requests such as yours are initially handled by administrative staff who (and it’s not their fault) have little idea of the legal processes that are involved.
Essentially one of only two scenarios could apply in your case: either your response to the SJPN, (indicating your guilty plea and providing details of your income) was received or it was not.
If it was received, your fine would be based on a multiple of your stated income but capped at £1,000 – the maximum for the offence. The guidelines for 34mph in a 20mph limit suggest a fine of one week’s net income. If your income is £1,000 per week or more that is the most your fine should be. However, you are entitled to a one third discount off that fine for a guilty plea, making the maximum fine £667.
If your response was not received the court would have no information concerning your income and so would use a default figure of £440pw. In that event they would also not have received your guilty plea, so you would not receive a discount, so the fine should be £440.
Either way, you have been over-fined to the tune of between £333 and £560 (possibly more if your income is less that £440pw). Added to that, the fine attracts a surcharge of 40%, so you can increase those figures by that amount.
These are the very minimum figures. Of course if you can persuade the court to sentence you at the fixed penalty level, the excess you have been charged is much higher.
It is ludicrous to advise you to appeal to the Crown Court. There is no need. There has clearly been an error made in your sentencing which can be easily rectified in the Magistrates’ Court. As well as that, in view of the time lapse, the Crown Court will not entertain it. The wording in their reply, which mentions appealing against your conviction, leads me to believe that this is standard wording which is pumped out whenever the word “appeal” is mentioned in a request such as yours and that no proper consideration has been given to your individual problem.
As I said in my earlier reply, you must insist on this matter being put before the court for consideration. Best, I think, to avoid using the word “appeal”. What you are doing is not making an appeal (which can indeed only be done in the Crown Court) but emphasise that you want the matter reopened in the Magistrates’ Court under s142. This might prevent another standard reply being produced. Make it clear that there has undoubtedly been an error in your sentencing (you don’t need to go into too much detail - you can provide that to the court at your hearing). That is your reason for asking for the case to be reopened.
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Thanks, I am emboldened by all the advice received and will persevere down the s142 path as I have outlined in the requests I have made to HMTCS and the Court where the sentencing guidelines were not followed and I was unfairly disadvantaged through no fault of my own.
I believe HMTCS sending me details of the Appeal process is another rouse to kick the ball in to the long grass and delay proceedings with the intention of having my request refused due to the lapse in time since I was notified of the sentence. This sounds similar to the original advice I was given by SJS to make a statutory declaration against the SJPN and then HMTCS taking more than 3 months to respond advising I was not eligible to make a Statutory Declaration as I had plead guilty in the SJPN. I was guilty of the offence, the issue is the unfair sentence I received.
Thanks again for all the advice and I will keep you posted on how I get on.
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Did it say 'appeal against conviction' or 'appeal against the sentence' had an appeal been appropriate it would have been against the sentence for the reason SP notes.
I also agree you need to push the S142 route, you need to detail using New Judges post why the current sentencing cannot be correct.
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You can’t appeal against conviction if you pleaded guilty, so your conviction would be upheld by the Crown Court in any case. If it was me, I would continue down the s 142 route as you are grossly out of time to appeal anyway.
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Hi All,
just a quick update on my case. I had emailed HMTCS, written to the Magistrates Court where the case was heard and sentence imposed, and submitted an online request to HMCTS to have the case reopened under ‘Options after a magistrates court decision' all in pursuit of having the case reopened under s142 of the Magistrates Court act 1980.
HMTCS have replied to a prior email I had sent requesting the sentence be appealed and have the case reopened stating I have an automatic right of appeal to the Crown Court to appeal against the conviction and that I can appeal against the conviction and/or the sentence within 21 days. They also highlighted in the event 21 days have passed, and in my case more than 8 months have passed, then I must make an application for leave to appeal out of time. They also go on to say whether I am granted leave to appeal will be decided by the Crown Court and I will be notified of the decision.
HMCTS appear to be disregarding my request to have the case reopened by the Magistrates Court under s142 in the interests of justice as sentencing guidelines were not followed being my best course of action and as advised on this forum. I do not want to make an appeal to the Crown Court as I assume this puts me at risk of the conviction/sentence being upheld, a harsher sentence being imposed and increased costs. Not to mention the legal fees incurred to defend my case.
Should I persevere and insist the case be reviewed by a Magistrate with a view to the case being reopened given the aforesaid mitigating circumstances, or consider making an appeal to the Crown Court?
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Perhaps Im completely mistaken, but when asking for the case to be reopened under s142, shouldn't the OP be asking the court to follow the sentencing guidelines which say that if a COFP was not taken up because of reasons not connected with the offence, they should be fined at the same level as the COFP?
I made my calculation of the fine on the basis that the SJ had decided to impose a fine in accordance with the normal sentencing guidelines. But..the imposition of the maximum for the offence is troubling. I cannot imagine the Legal Advisor allowing such an error in sentencing to go unchallenged. I am beginning to wonder whether the response to the SJPN (including his plea) was actually received. That said, as I said earlier, if his plea wasn't received his statement of means would also be unavailable and he should then have been fined on the basis of an income of £440pw.
There's certainly a case for requesting sentence at the FP level, but for now the immediate priority is getting the court to hear a request to reopen the case under s142. The justice that has been denied is twofold: firstly why was the option to fine at the FP level not taken up and secondly why was the maximum fine imposed.
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Your fine should have been calculated as one week's net income, capped at £1,000 (the maximum for the offence), then a third off for your guilty plea.
Perhaps Im completely mistaken, but when asking for the case to be reopened under s142, shouldn't the OP be asking the court to follow the sentencing guidelines which say that if a COFP was not taken up because of reasons not connected with the offence, they should be fined at the same level as the COFP?
Or is the problem here that the OP has no evidence that he tried to take up the COFP offer?
Any advice on the point ManxTom has raised would be greatly appreciated as this will be my starting point on the request to reopen the case pursuant to s142 of the Magistrates Court Act 1980, in the interests of justice being served? My second point will be that as per the Sentencing Council guidelines, ref slapdash and NewJudge, I should have been entitled to 1/3 off the max fine of £1000 imposed as I had plead guilty to the SJP.
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... I sent the letter by recorded delivery this time - I will never again assume that documentation that has been requested, has actually been received and processed by the courts and their offices accordingly - this is the one lesson that I and others should learn from dealing with the justice system relating to road traffic offences...
There is a legal presumption that anything sent by first class is delivered 2 working days later unless the addressee can prove it wasn't received.
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Well, not quite 'anything'. The presumption in the Interpretation Act actually only applies 'Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used)'.
Which Act required the OP to send his details by post?
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Your fine should have been calculated as one week's net income, capped at £1,000 (the maximum for the offence), then a third off for your guilty plea.
Perhaps Im completely mistaken, but when asking for the case to be reopened under s142, shouldn't the OP be asking the court to follow the sentencing guidelines which say that if a COFP was not taken up because of reasons not connected with the offence, they should be fined at the same level as the COFP?
Or is the problem here that the OP has no evidence that he tried to take up the COFP offer?
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... I sent the letter by recorded delivery this time - I will never again assume that documentation that has been requested, has actually been received and processed by the courts and their offices accordingly - this is the one lesson that I and others should learn from dealing with the justice system relating to road traffic offences...
Yeah. That might seem like a good idea but it isn't necessarily true.
I believe the standard advice on here is (a) to keep a copy on your 'phone of anything you send back, and (b) to send it back by first class post from a PO counter and ask for a free certificate of posting.
There is a legal presumption that anything sent by first class is delivered 2 working days later unless the addressee can prove it wasn't received.
Whether it gets lost or not you have evidence (the certificate and the copy on your 'phone) that you complied with any request.
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Or, are they getting mixed up with the NIP procedure, which I was issued in the first place, and complied with which resulted in the Fixed Penalty offer being made?
As above, yes they are getting mixed up. Unfortunately another manifestation of admin staff who are not legally qualified providing advice.
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To expand on what SP said, no absolutely not.
That offence is committed if you fail to provide DRIVER details in response to the original S172/NIP.
What caused you to end in court was failing to provide (them receiving) the licence details in order to satisfy the requirements of accepting the Conditional offer of a Fixed Penalty, that isn’t an offence and so you couldn’t be charged with anything, but as it amounted to a failure to accept the offer the Police would then resort to court action.
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They are getting mixed up with the NIP.
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Just one more question if I may? Should a Failure to Provide Information charge been listed on the SJPN I received? I ask this on the basis that the Police claim they never received my driving licence details and as a result they proceeded with the SJP. When I spoke to HMCTS earlier today to check the status of my request to reopen the case, they mentioned the Police would normally proceed with a Failure to Provide Information charge when deciding to prosecute a SJP in cases where information is not received from the defendant. Or, are they getting mixed up with the NIP procedure, which I was issued in the first place, and complied with which resulted in the Fixed Penalty offer being made?
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https://www.sentencingcouncil.org.uk/fine-calculator/
Op might find the above useful (which gives the result NewJudge mentions).
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Your fine should have been calculated as one week's net income, capped at £1,000 (the maximum for the offence), then a third off for your guilty plea.
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I'm considered a relatively high earner, in the 40% tax bracket. I provided full transparency on my earnings in the submitted SJP guilty plea. This is the reason the Court admin gave on why the fine was so high when I questioned why I had received the maximum fine for a relatively minor speeding offence (band B) with no prior endorsements on my licence.
Nevertheless, based on the advice given above, I will be bringing up the fact that I should have been entitled to a 33% reduction in fine as I had plead guilty to the SP30 offence in the SJP as a further argument on why my case should be reopened in the interests of justice.
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Apart from anything else a £1000 fine seems to be just wrong unless you have a huge salary or ticked the box on MC100 incorrect as pay per…..
It's particularly unjust when considering the following:
Either the response to the SJPN was received or it wasn't.
If it was received and a guilty plea was entered, the defendant was entitled to a one third discount off the fine, thus making the maximum £667 regardless of income.
If it was not received the fine should have been set on the basis of an assumed weekly income of £440.
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To gain a sympathetic audience your application ideally needed to lay out WHY (legal reasons, such as the sentencing guidance for cases like yours) it is in the interest of justice to reopen the case.
Apart from anything else a £1000 fine seems to be just wrong unless you have a huge salary or ticked the box on MC100 incorrect as pay per…..
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Hi,
Thanks for the advice once again. I wrote to the Court where I was convicted last week requesting the case be reopened pursuant to Section 142 of the Magistrates Courts Act 1980. I sent the letter by recorded delivery this time - I will never again assume that documentation that has been requested, has actually been received and processed by the courts and their offices accordingly - this is the one lesson that I and others should learn from dealing with the justice system relating to road traffic offences.
I await the outcome of my request to reopen the case and take onboard the advice to insist on a court hearing in front of a Magistrate to make my case.
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Then you must explain all of this when you make your application under s142. You being advised to submit a stat dec is somewhat typical, I am afraid, of admin staff giving incorrect advice. As you probably now know, a stat dec is only appropriate when you have been convicted under proceedings of which you were unaware. You were aware of the proceedings against you - in fact you responded to the SJPN with your guilty plea.
I would suggest you write to "The Clerk to the Justices" at the court where you were convicted. Actually that title was, I believe, abolished in 2018 but nobody really seems to know the job title which replaced it so your letter will certainly find its way to the right desk.
As I said, be prepared for a struggle to get your application heard.
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Thanks for the advice. if I may add to the mitigating circumstances, on the day I was notified of the £1,490 fine, surcharge, and costs by email, within an hour of reading that email notification, I suffered a stroke and was rushed to hospital where I spent 6 weeks recovering before being discharged. I am left partly paralysed down my left-side and still recovering. I believe the shock of the level of fine imposed contributed to my stroke, however, I will never be able to prove that. While I was hospitalised it was my wife who was dealing with the authorities and fighting off the enforcement people. She was advised by the Single Justice Service to submit a Statutory Declaration.
As mentioned, in the returned SJP plea I explained that I had already received a fixed penalty for the offence that I had complied with. It would appear this info was disregarded at the time of the SJP was heard and then it took until yesterday, almost 8 months from when the SJP was issued, to get explanation of why the SJP had been issued.
Regards,
SeeksJustice
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Apart from anything else, £1,000 is the maximum fine for speeding and at the very least you should have been granted a one third discount for a guilty plea, regardless of your income.
An appeal to the Crown Court must have been lodged within 21 days of your conviction so that's out. As Rookie says, a Section 142 request is the only way to go but whether the court will agree to reopening in view of the time lapse is hard to say. One thing you must ensure is that your request to reopen should be heard by the court (i.e. before Magistrates). Admin staff sometimes take it on themselves to deny requests based on criteria which they make up as and when. You must reject any such denial and insist on a hearing in court. There is no statutory time limit to make a s142 request and whether or not to agree to reopening "in the interests of justice" is entirely a judicial decision which must be taken by Magistrates.
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Ideally you should have raised those when pleading guilty in the first place.
Whether you sent the form is legally irrelevant, they have to receive it, if they did not the SJPN was quite correctly issued.
What you should have done (and can request the court to reopen the case under S142 of the magistrate’s court act to do in the interests of justice) was present a coherent plea that the details were sent and request sentencing at the fixed penalty tariff in line with the sent ending guidelines.
Unfortunately your defective research (a stat dec was never appropriate and would/should never be accepted) and a lot of time wasted means they are now unlikely to agree to reopen the case and it’s probably too late to try and appeal the sentence as well.
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Hi folks,
Looking for some advice on my legal matter please.
In May 2023 I received a fixed penalty notice from the Met Police of £100 for driving 34 mph in a 20 mph speed limit in South London. I paid the £100 fine and returned my driving licence details in the form provided by post within the time limits of the fixed penalty offer and considered the matter closed.
in Sep 2023 I received a SJP asking me to make a plea of guilty or not guilty to the same speeding offence that I had been sent the fixed penalty offer for in May. I returned the SJP, pleading guilty to the speeding offence, as I was guilty of speeding, and explained that I had already fully complied with the fixed penalty offer in May and asking for an explanation on why I had been issued with the SJP. I was refunded the £100 fixed penalty at end of Sep and on 10th Oct 2023 I received a fine collection order informing me that I had been fined £1,000, £400 victim support surcharge, and £90 costs, OUCH!
After several months corresponding with the Magistrates Courts involved, enforcement agency and making a Statutory Declaration that I was later informed I was not eligible for, I have finally received an explanation from the prosecuting Courts' Admin office after 8 months on the reason why a SJP was issued against me. That is, the Police claim that they did not receive the details of my driving licence and as a result they proceeded with the SJP. Unfortunately, I do not have a copy of the form where I entered my driving licence details and posted to the return address.
What recourse do I have to have my case reopened on the grounds that a SJP should never been issued as I had fully complied the fixed penalty offer by paying the £100 penalty and providing my driving licence details within the time limits of the offer? Does the onus fall to me to provide proof that the driving licence form was returned? I understand that there is guidance that the Court can follow in such cases where a penalty notice could not be offered or taken up for reasons unconnected with the offence itself, such as administrative difficulties outside the control of the offender, the starting point should be a fine equivalent to the amount of the penalty and no order of costs should be imposed.
Any useful advice on this matter would be appreciated as I am keen to understand how best to proceed and seek closure to a situation that was beyond my control.
Regards,
Seeking Justice