O'Byrne v DPP, Neville v DPP

• Jurisdiction: Ireland
• Judge: Ms. Justice Ní Raifeartaigh
• Judgment Date: 30 October 2019
• Neutral Citation: [2019] IEHC 715
• Date: 30 October 2019
• Court: High Court
• Docket Number: [RECORD NO. 2018/374 JR]

BETWEEN

BRIAN O’BYRNE

APPLICANT

- AND -

THE DIRECTOR OF PUBLIC PROSECUTIONS, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

BETWEEN

ORLAGH NEVILLE

APPLICANT

- AND -

THE DIRECTOR OF PUBLIC PROSECUTIONS, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2019] IEHC 715

Ní Raifeartaigh

[RECORD NO. 2018/374 JR]

[RECORD NO. 2018/482 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Conviction – Road Traffic Act 2010 – Applicants seeking an order of certiorari quashing conviction – Whether s. 44(10) of the Road Traffic Act 2010 is incompatible with Article 38.1 of the Constitution

Facts: The applicants, Mr O’Byrne and Ms Neville, each claimed: (1) an order of certiorari quashing conviction; (2) a declaration that the combination of ss. 35, 36, 38 and 44(1) of the Road Traffic Act 2010 are invalid having regard to the Constitution and, in particular, the right to fair trial under Article 38.1 and the right to be held equal before the law and to fair procedures in Articles 40.1 and 40.3.1; and (3) in the alternative, a declaration that the provisions of s. 44(1) of the 2010 Act are invalid on the basis of the same Articles of the Constitution.

Held by the High Court that s. 44(10) of the 2010 Act is not compatible with Article 38.1 of the Constitution. The Court held that: the word “served” in ss. 35, 38 and 44 of the legislation should be interpreted consistently; “served” means “posted and received”; the presumption in s. 38 means that “posted” is deemed to be good service unless and until the contrary is proved by the accused person i.e. that he or she did not “receive” the document; s. 44(10) has the effect of creating an internal contradiction in the legislative regime such that if a motorist proves he or she was not served, one provision tells the District Judge to dismiss while the other tells him to convict; this rendered the applicant’s trial other than one conducted in accordance with the guarantee of trial in due course of law in accordance with Article 38.1. The Court rejected the submission that the provisions involved a breach of the equality guarantee under Article 40.1 of the Constitution.

The Court held that certiorari would be granted.

Certiorari granted.

JUDGMENT of Ms. Justice Ní Raifeartaigh delivered on 30th day of October, 2019

Nature of the case

1 This case concerns the interaction between the “fixed charge notice” regime, which facilitates early payment of a relatively small fine in respect of certain road traffic offences without the necessity of any court appearance, and the conduct of criminal trials in respect of the same road traffic offences in the District Court when the fixed charge has not been paid. The case raises issues concerning the impact and validity of s.44(10) of the Road Traffic Act 2010 as amended by the Road Traffic Act 2016 (brought into force on 1st June, 2017). An important feature of each of the applicant's cases is that a District Judge convicted each of them notwithstanding that neither received the first fixed charge notice under the regime.

The fixed charge penalty system described in simple terms

2 The fixed charge penalty system as currently set out in legislation can be briefly summarised as follows. (The detail of the legislative provisions is set out later in this judgment). I preface this by saying that I am stripping the system down to its bare bones and also focussing on the situation where service of the fixed charge notice is sought to be effected by post. The following does not claim to be in any way comprehensive but rather consists of an X-ray of the system in order to assist with the analysis in this case.

• A person is reasonably believed to have committed a particular road traffic offence which falls within this regime. The offences in question are fixed by Ministerial order, and include driving while holding a mobile phone.

• A fixed charge notice is posted to the motorist. This is the “initial” fixed charge notice under s.35, or what I will call the “s.35 notice”. It tells the motorist that he or she can avoid going to court by paying a particular fine within 28 days, or an increased fine during days 28-56. The increase is 50% of the original figure e.g. from €60 to €90. The person will also get three penalty points.

• If the person does not pay anything in response to the s.35 notice, a further two documents are posted out to him after 56 days; (1) a summons requiring him to attend court to answer a complaint that he committed the offence in question, and (2) a second fixed charge notice which says that he can avoid going to court if he pays a fine at least 7 days before the court hearing, in which case the prosecution will be discontinued. This fine has again been increased and amounts to double the original fine e.g. €120. I will call this second fixed charge notice the “s.44 fixed charge notice”. Again, if the person pays the fixed charge, the penalty points imposed consists of three points.

• If the person has not paid in response to the s.44 fixed charge notice within a prescribed time, the case will proceed to court. If the person is convicted by the court, he will receive a fine and a mandatory five penalty points. Counsel in the case before me indicated that this five-penalty-point imposition was mandatory and not discretionary.

The purpose of the fixed charge penalty scheme

3 Obviously, therefore, the purpose of the fixed charge scheme as a whole is to give the motorist a chance to avoid going to court with all the consequences which that entails, and provides to the State a quick, cheap and efficient way of imposing penalties on erring motorists without the expense and inconvenience of having to bring prosecutions in all such cases.

4 The relatively new “second chance” provisions in s.44 of the Act also fall in line with this purpose and give the motorist a final chance to avoid going to court. This came into force on 1st June, 2017.

5 The entire system as it currently stands could be described as a carrot-and-stick approach. There are several carrots and one stick. The stick is the prospect of criminal prosecution and conviction, accompanied by a fine and mandatory five penalty points. The carrots are the possibility of avoiding prosecution by paying a fine and incurring three penalty points. The first “s.35 notice” offers the motorist two carrots of diminishing size; then the s.44 notice offers the motorist one final carrot which is a smaller carrot than either of the carrots in the s.35 notice. The size of the carrot which is offered to the motorist diminishes as time goes on; the biggest carrot (smallest fine) is offered to those who pay early, the smallest carrot (biggest fine) is offered to those who pay late. All of this makes sense in the generality. The system is unlikely to cause unfairness if it operates as it is intended to operate, such that a person only gets the stick if he or she has declined to avail of the earlier carrots. However in real life, things do not always work out as planned, and this case throws up the potential wrinkles in the system when the first fixed charge notice is posted but fails to come through a person's letterbox.

6 In Kinsella v. DPP [2018] IEHC 474, the High Court (McDermott J.) described the purpose of the fixed penalty notice in more elegant terms than I have done above:

“17. The purpose of a fixed penalty notice is to provide an erring motorist with a quick and efficient method of acknowledging his wrongdoing and submitting to a lesser penalty than that which might be imposed after conviction. In doing so the motorist also avoids prosecution and the recording of a potential conviction for a criminal offence. The provisions of [the relevant legislation as it then stood] are intended to ensure that a person who is served with a fixed penalty notice is afforded the opportunity within the prescribed period to pay the penalty and in that period of grace, he may not be prosecuted for the offences. If the penalty is paid, he may not be prosecuted at all. If the penalty is unpaid a summons may issue based on an appropriate complaint. Once the summons had been duly served, the matter comes before the court which is vested with full jurisdiction to hear and determine the charges. The court's jurisdiction is based on the charges set out in the summons which issued on the basis of a complaint duly made.”

A hypothetical example to highlight issues arising in the case

7 A hypothetical example may be helpful to illustrate the issue which arises in this case. Let us suppose a number of motorists are each reasonably suspected by the Gardaí of having committed a particular road traffic offence, such as speeding, or driving while holding a mobile phone. Let us assume further that each of them did in fact commit the offence in question. A fixed charge notice is posted to each of them. This fixed charge notice says that the motorist can pay €60 within 28 days, or €90 between 28-56 days; if the motorist does this, he or she will also receive three penalty points.

8 David, the first of these hypothetical motorists, receives his s.35 fixed charge notice. He pays the fine of €60 and receives his three penalty points. Matters are then at an end as far as David is concerned.

9 Brendan does not receive his s.35 fixed charge notice. Let us assume that he genuinely does not receive the letter for some particular reason, such as a postal strike or an error on the part of a new postman who delivered to a neighbour by mistake. Brendan, therefore, is not aware of the fact that he is suspected of an offence or that he could pay an early fine, because he did not receive the notice. After 56 days have passed, he receives two documents in the post: a summons to go to court and a fixed charge notice. This fixed charge notice tells him that he can avoid going to court by...