A High Court judge yesterday delivered a written judgment that a part of the Road Traffic Act 1961 dealing with fixed charge penalty notices is unconstitutional.

The ruling puts in jeopardy up to 28,000 cases after successful legal challenges by two drivers convicted for using phones while driving.

Process

Since the decision was made in court by Ms Justice Úna Ní Raifeartaigh on 8 October, District Courts have been throwing out motoring cases, legal sources have said.

District Court judges convicted both motorists though they got a fixed charge penalty notice at the beginning of the prosecution process.

Section 45 of the Road Traffic Act 2010, as amended, says a summonsed person cannot be convicted if they are not initially served with a fixed charge notice.

Three penalty points

If the motorists had received this notice, they would have been able to pay a €60 fine, accept three penalty points and avoid a court appearance.

However, a 2016 amendment to the Act says that a summonsed person cannot use this claim, of no initial fixed penalty being issued, as a defence.

The fixed charge penalty for driving with a mobile phone is €60, if settled within 28 days, beyond which it increases to €90. After 56 days of non-payment, a summons is issued. A second notice then gives the option to pay €120 within seven days of a scheduled court appearance for the matter to be dealt with. Penalty points also apply.

Fair trial

Ms Justice Ní Raifeartaigh said that this “conundrum” could mean a summonsed person cannot get a fair trial. The Oireachtas “cannot have its cake and eat it too” the judge said.

Legal sources said that prior to 2016, this was a common defence offered in court.

But the District Court accepted the evidence of the drivers who took the legal challenge, that they had not received initial fixed penalty notices.

Discretion

The Oireachtas may amend the legislation such that a judge has discretion to accept a defence that no initial fixed penalty notice was issued.

Justice Ní Raifeartaigh also said that registered postal delivery, with signature on acceptance, may solve the issue.

The ruling deals with whether a notice being served is covered under the law in the same way as a notice being received.

But by virtue of being summonsed to court for not paying a fixed charge notice they never received, both ended up with a higher fine, five penalty points and a conviction.

Due course of law

In her written judgement Justice Úna Ní Raifeartaigh found the section of the Act was not compatible with Article 38.1 of the Constitution, which states no person shall be tried for a criminal charge save in due course of law.

The judge said there is "an internal contradiction" in the current law.