Hi Guys - first time poster long time reader etc........
Anyway I got the DVLA summons a little while ago, and have sent the DVLA a letter back, which basically reads as follows:
REQUISITION TO ATTEND xxxxxxxxxxx MAGISTRATES COURT ON xxxxxxxxx Vehicle registration ********
I am writing in regards to the requisition sent to me to attend xxxxxxxxx Magistrates Court on xxxxxxxx to answer the charge of Failing upon the Change of Keeper of the Vehicle, to Notify the Secretary of State forthwith.
I will be pleading NOT GUILTY on all charges as I consider I have no charges to answer.
I am now informing the DVLA that I surrendered the vehicle’s V5C document to the DVLA as required by law. The V5 was returned to the DVLA by Royal Mail First Class post. The date of posting was the same date as the sale of the vehicle, the 12th December (12th) 2011.
The Sale was of a nnnnnnnnnnnnnnn, VRM nnnnnnnnnnnn from Myself to a new keeper,nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn, and this data was entered on the V5C that was sent to yourselves on that date.
My responsibility ends as soon as I relinquished control of delivery to the UK Postal Service, Royal Mail.
With regard to Section 07 of the Interpretations Act 1978
Section 7. References to service by post
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) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
I would like to bring your attention to the wording 'whether the expression "serve" or the expression " give " or " send " or any other expression is used' clearly also covers 'deliver'.
Therefore, by correctly addressing the envelope, affixing a stamp to cover the necessary charge (as is required), and by placing the item in a Royal Mail Mailbox, I have fulfilled my responsibility to notify the DLVA as required by statute legislation, and furthermore as the DVLA are an Executive Agency for the Department for Transport, by me sending the V5C by post to DVLA, it was therefore delivered to the Secretary of State as required by this legislation.
As the DVLA place their postal address on the V5C and do not offer an alternative delivery method for this communication, nor do they request I communicate this via means other than posting I have followed the DVLA’s own instruction with regard to this matter.
This is also covered within the Human Rights Act 1998, Schedule 1, Article 6, section 2 whereby it states‘Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. ‘
I have no proof of posting the V5 document because the DVLA does not require me to obtain this. I also believe that I should not have to prove that I posted the V5C and if this matter does indeed go to court it is the requirement of the DVLA to prove that I did not.
I would also like to bring your attention to FOIR 1396/09, Sent to Collins, whereby Richard Batchelor clearly states that
“..if an item of mail does happen to be mislaid within the Agency, the responsible area would be unaware of the loss until notified (normally by the sender of the mail). There is no automatic process alerting the Agency to a previously received item of mail that had not been processed.”
Therefore we cannot rule out the possibility that my notification was received by the DVLA at the address required, and was subsequently misplaced internally after delivery.
I will now move onto more details on my responsibilities as to the V5 document.
Details on the V5 state -
'Once we know about the changes, you should receive an acknowledgement letter to confirm that you are no longer responsible for the vehicle. If you do not receive the letter within 4 weeks, please phone 0300 790 6802.
Can you please advise under what Statute Legislation I am lawfully obliged to contact DVLA if I do not receive any such acknowledgement or correspondence from DVLA.
The question of the legislation on contacting DVLA and statute legislation has already been judged in various county courts and has been found in the defendants favour. This matter has been discussed in great lengths on BBC TV Watchdog. I should like to bring your attention to DVLA vs. Peck.
Mr Peck (Claim 9BR0829 at Horsham County Court. The Judge found in Mr Pecks's favour stating the DVLA has no statutory power requiring anyone to contact them should they not receive an acknowledgment letter.
I must also inform the prosecutor that I am fully aware of the DVLA vs Kennedy case whereby Mr Kennedy claimed he was wrongfully convicted of the same offence I am being charged with. Mr Kennedy then appealed his case to Chelmsford Crown Court on Friday 9th September 2011. DVLA prosecutors at Swansea withdrew and offered no evidence to the crown court. No doubt this was to stop a precedence being set as case law being it was a Court of Appeal and binding on all equal and lower Courts.
I can assure DVLA that if I am summoned before the magistrates and convicted, I will be seeking leave to appeal to the crown court myself being that magistrates are normally lay magistrates and not familiar with statute legislation.
Lastly, today by writing this letter, I have additionally followed the DVLA’s own advice as found on the direct.gov.uk website at: LINK REMOVED DUE TO NOT HAVING 10 POSTS
This clearly states that I should contact yourself directly at the local office quoting the VRM, Make and Model, the Date of Sale or Transfer and the Name and Address of the person I sold the vehicle to. This has been done in paragraph 4 of this letter, and therefore as you are acting for the Department of Transport I have further notified you of the change of keeper as per your own advice, and in adherence with the legislation.
Considering the information contained in this letter, I hope you will see that proceeding with this prosecution is in no means justified, and the matter can now hopefully be considered closed. However, if you do continue with this prosecution then I must advise you I will be seeking my costs back from the DVLA if I am found to be not guilty on the charges.
I trust this letter is explanatory in its context and reserve the right to show this letter in court if needed.
So, now I have had what is best described as a "Scare" letter back from the prosecutor - which i will paraphrase from......
"I have received your plea of not guilty concerning an offence under the above act. It is th usual practice at nnnnnnnnnnn Magistrates court that when a not guilty plea is entered the case will be adjourned for trial at a later date to enable you to attend, therefore you are free to attend but there is no requirement for you to do so. "
It may help to clarify the case to be presented against you that you failed to notify disposal of this vehicle. To assist..............regulation 22(2) (b) of Part 4 of the Road Vehicles (registration and licencing) regulations 2002 (as amended) the agency issues an acknowledgement letter on receipt of disposal notifications., Information pertaining to is....on V5c......The disposing keeper is advised that should they not receive the acknowledgement letter within 4 weeks of sending they should contact the agency.........
I note from your letter that you state you notified the DLVA and therefore carried our your responsibilities and there are no legal requirementrs for you to chase the acknowledgement letter. There is no legal requirement for you to ensure you have received the acknowledgement letter but knowing you did not receive one must have alerted you to the fact that the DVLA had not updated the records. Indeed the....letter is issued to aid the registered keeper.
In this instance your case will be adjourned to allow you to attend court and failing proof of notification you will be required to swear on oath that you notified the DVLA.
The opportunity to pay the Out of Court settlement of £55.00 is still available to you.........if you have any querues please contact me on the above number.
Now as far as i can see from this
1- The DVLA has assumed that i KNEW i did not recieve the letter.
2 - There is no legal requirement for me to ensure i have received the letter or chase it, therefore if i was unaware i had received it then its a null point
3 - If I attend and swear on oath that i posted the letter then i assume that should be case closed.
Does anyone have any advise on how to progress?