Section 15 endeavours to sort problems with the Road Traffic Act - but, according to lawyer Michael Dreelan, there are stills difficulties
Had the system worked smoothly, it would be a very brave and rare motorist who would risk doubling his or her penalty points and getting a criminal record by going to court. This would have the desired effect of deterring speed, while imposing a very minimal increase on Garda workloads.
However Section 21 requires that the evidence of speed be "contained in a record". This had to be a permanent record. As the old system had been repealed there was no way around this problem - if there was no record, there was no case.
This was exploited as word of the difficulties spread. The not unreasonable belief arose that a certain degree of bad luck was required in order to be convicted of a speeding offence.
The State's difficulties were compounded by problems in administering and proving the fixed penalty system. It became common to see members of the public, unrepresented and untrained in advocacy, routinely securing dismissals.
Into this debacle was introduced Section 15 of the Road Traffic Act 2004, an attempt to close the loophole regarding records of speed. It certainly is a step in the right direction as it amends Section 21 to allow unrecorded evidence of speed, but does not allow this evidence by way of a document.
As hand-held speed guns do not produce records, a prosecuting Garda must appear in court to give evidence of speed. Section 15 is therefore, not a development in the law, but rather a necessary regression. Its effect is to reinstate the old system of prosecution.
The impact of this change on the management of Garda resources remains to be seen.
Another difficulty arises on the service of fixed penalty notices. Large numbers of accused have been willing to give sworn evidence that they did not get their notices and, where such evidence has been offered, the State has rarely (if ever) been able to prove postage. This makes judges reluctant to convict.
This flaw may already have undermined the deterrent effect of the fixed penalty system, thus encouraging motorists to take the risk of going to court.
Another problem which may yet go before the superior courts is the twin-track system which now applies. Some accused will have the benefit of records of their offence to help them deal with the charges, while others will not - but those others alone will have the opportunity to cross-examine the Garda who alleges speed.
It's possible that this offends against the equality and due process provisions. Similarly one must question the basic fairness of a system which makes it mandatory to increase penalty points for those who wish to have access to courts, even if they plead guilty.
As the system stood prior to Section 15, Robert Pierce stated in the leading text on road traffic law that the system "seems to fall short of the normal standards of the rules of evidence".
This referred particularly to the prosecution not having to prove the accuracy of detection devices, as well as ambiguity on what indications of speed might be considered by the Gardaí.
Finally, Section 15 lacks the usual saver that it will not have effect until commencement. Can it be that the Government hopes to mend its hand on pending prosecutions by claiming a retrospective effect for Section 15? This seems unlikely - but why was the saver omitted?
It seems likely that the number of challenges to the speed detection system will grow, especially as more motorists approach a disqualifying 12 penalty points. There is no doubt that the amendment, while tackling one discrete point, will place an increased burden on the Gardaí and certainly does not answer all questions about the system.
Michael Dreelan is a barrister with experience of criminal and civil law