Section 44.10 of the Road Traffic Act 2010 (as amended by section 27 of the Road Traffic Act 2016) did not distinguish between those who chose not to pay a first fixed-charge notice, and those who genuinely did not receive it, Ms Justice Úna Ní Raifeartaigh said.
Initial notice not received
The Irish Examiner reports that the man was summoned on a charge of holding a mobile phone while driving. While he admitted the offence during a District Court hearing in March 2018, he said he had not received the initial fixed-charge notice.
While he received the summons with the second fixed-charge notice attached, he claimed that because he did not get the initial notice, he was denied the opportunity to pay a lower fine.
His lawyers applied to have the case dismissed on grounds that he was prejudiced by not having had the opportunity to pay the lower fine. The case was adjourned.
In May 2018, after the State argued before the District Court that, arising from section 44.10, the District Judge was obliged to convict the man, the judge did so, handing down a €300 fine and five penalty points. The man appealed.
Cases on hold
A number of District Court prosecutions have been on hold pending the High Court challenge.
Yesterday, Ms Justice Ní Raifeartaigh said she would deliver her judgment on the complex case, and a similar case, on 30 October. However, because she was aware that the judgment would have a significant impact, she offered to outline her conclusion so that the State would have time to either appeal, or amend the relevant legislation. No final orders will be made before that.
Ms Justice Ní Raifeartaigh concluded that section 44.10 of the Road Traffic Act 2010 (as amended by section 27 of the Road Traffic Act 2016) is unconstitutional.
Section 44.10 states: “Where a person is served with a summons accompanied by a section 44 notice in respect of a fixed-charge offence, it shall not be a defence for the person served with the summons to show that he or she was not served with a fixed-charge notice in respect of the alleged offence in accordance with section 35.”
Section 35(2) deals with the serving, by gardaí, of fixed-charge notices. It states: “A prosecution in respect of a fixed charge offence shall not be instituted unless a fixed charge notice in respect of the alleged offence has been served on the person concerned under this section and the person fails to pay the fixed charge in accordance with the notice.”
Circumstances outside their control
In his High Court proceedings, the man, represented by Feichín McDonagh SC, with Brendan Hennessy BL, argued that section 44.10 means that defendants charged with the same offence might receive different penalties due to circumstances wholly outside their control – that is, non-receipt of the fixed-charge notice.
It was claimed that such a distinction was in breach of the fair procedure and fair trial requirements of the Constitution, and incompatible with the State’s obligations under the European Convention on Human Rights and Fundamental Freedoms.
Ms Justice Ní Raifeartaigh noted that the State took the position that the word “serve” could have two different meanings within the context of one act.
She considered this could not be the case and respectfully disagreed with previous High Court judgments on the issue.
She added that section 35.2 of the 2010 act and section 44.10 of the same act (as amended by section 27 of the Road Traffic Act 2016) were contradictory. The legislation did not distinguish between those who chose not to pay the first fixed-charge notice, and those who genuinely did not receive it, she said.
She was thus prepared to quash the conviction and grant a declaration that the section was unconstitutional.