Author Topic: Received SJP after complying with Fixed Penalty Offer  (Read 576 times)

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ManxTom

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Re: Received SJP after complying with Fixed Penalty Offer
« Reply #15 on: April 25, 2024, 05:21:00 pm »
... 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.
« Last Edit: April 25, 2024, 05:22:31 pm by ManxTom »

ManxTom

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Re: Received SJP after complying with Fixed Penalty Offer
« Reply #16 on: April 25, 2024, 05:29:19 pm »
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?

666

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Re: Received SJP after complying with Fixed Penalty Offer
« Reply #17 on: April 25, 2024, 06:02:31 pm »
... 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.
.
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?

SeeksJustice

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Re: Received SJP after complying with Fixed Penalty Offer
« Reply #18 on: April 25, 2024, 07:24:18 pm »
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.

NewJudge

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Re: Received SJP after complying with Fixed Penalty Offer
« Reply #19 on: April 25, 2024, 07:47:56 pm »
Quote
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.

SeeksJustice

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Re: Received SJP after complying with Fixed Penalty Offer
« Reply #20 on: May 16, 2024, 12:03:21 am »
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?     

Southpaw82

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Re: Received SJP after complying with Fixed Penalty Offer
« Reply #21 on: May 16, 2024, 12:18:32 am »
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.

The Rookie

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Re: Received SJP after complying with Fixed Penalty Offer
« Reply #22 on: May 16, 2024, 07:53:30 am »
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.
There are motorists who have been scammed and those who are yet to be scammed!

SeeksJustice

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Re: Received SJP after complying with Fixed Penalty Offer
« Reply #23 on: May 16, 2024, 09:01:21 am »
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.   

NewJudge

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Re: Received SJP after complying with Fixed Penalty Offer
« Reply #24 on: May 16, 2024, 10:55:30 am »
Quote
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.
« Last Edit: May 16, 2024, 11:00:38 am by NewJudge »
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