About 28,000 prosecutions could be affected by a High Court decision that a section of the Road Traffic Act concerning defences to fixed charge notices is unconstitutional, counsel for the State has told the High Court.
The High Court decision was delivered in separate challenges by a man and a woman over their convictions for holding a mobile phone while driving, an offence which attracts a fine and five penalty points.
David Staunton BL, for the DPP and State, told Ms Justice Úna Ni Raifeartaigh on Wednesday a view has yet to be taken about the “appropriate remedy” for the situation and he asked for time to consider the court’s judgment.
The judge indicated on October 8th last she intended to conclude that section 44.10 of the Road Traffic Act 2010 – as amended by s.27 of the Road Traffic Act 2016 – is unconstitutional.
She was outlining that conclusion because she was aware her judgment would have “widespread impact” and so the State would have time either to appeal or to amend the relevant legislation, she said.
Section 44.10 prevents a defence to the charge of holding a mobile phone while driving on grounds the accused person was not served with a first fixed charge notice.
Served
The judge said the word “served” [as in served a notice] in section 44 and in other sections of the Act – sections 38 and 44 – should be interpreted consistently.
She held section 44 is unconstitutional because it did not distinguish between those who chose not to pay a first fixed charge notice and those who genuinely did not receive it.
She deferred delivering her final detailed judgment until Wednesday.
Having heard on Wednesday from Mr Staunton, and from Feichíh McDonagh SC, with Brendan Hennessy BL, for the applicant, the judge said she would allow the sides until November 19th to consider the judgment and would make final orders on that date.
Section 44.10 provides that a person who is served with a summons and a Section 44 notice in respect of a fixed charge offence cannot have a defence by demonstrating the fixed charge notice was not served on them in accordance with section 35 of the same Act.
Section 35 deals with the serving by gardaí of fixed charge notices and provides that a prosecution for a fixed charge offence shall not be instituted unless a fixed charge notice concerning the alleged offence is served on that person and they fail to pay the fixed charge.
The applicants had argued section 44.10 means defendants charged with the same offence may receive different penalties due to circumstances wholly outside their control – non-receipt of the fixed charge notice.
In her full judgment on Wednesday, the judge found the applicants did not receive a fair trial in accordance with Article 38.1 of the Constitution on the basis of the existence of contradictory provisions in the Road Traffic Act.
In relation to possible amendments to the legislation, she said that conferring a degree of discretion upon a district court judge in sentencing might ensure that judge can addresses the various practical situations which may arise.
Consistently
She said the word served should be interpreted consistently in sections 35, 38 and 44 of the Act and served means “posted and received”. She said the presumption in section 38 means that “posted” is deemed to be good service unless and until the contrary is proven by the accused person – that they did not receive the document.
Section 44.10 creates an internal contradiction in the legislative regime because if a motorist proves they were not served, one provision tells the district judge to dismiss and the other to convict, she said.
This meant the applicants’ trials were not conducted in accordance with Article 38.1 of the Constitution.
In their separate district court cases, both the man and woman admitted holding a mobile phone but argued they had not received the initial fixed charge notice.
Had they done so, and paid the fine, that would have enabled them to avoid conviction, a higher fine and the mandatory five penalty points.
The district judge in both cases was satisfied they had not received the first fixed charge notice.
The State argued before the district court that, arising from Section 44.10, the district judge was obliged to convict.
