D. P. P. -v- Judge Browne, [2008] IEHC 391 (2008)

Docket Number:2007 1668 JR
Party Name:D. P. P., Judge Browne
Judge:McMahon J.
 
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THE HIGH COURT

JUDICIAL REVIEW2007 1668 JR

BETWEEN

DIRECTOR OF PUBLIC PROSECUTIONSAPPLICANTAND

JUDGE GEOFFREY BROWNERESPONDENTAND

MICHAEL MULLANENOTICE PARTYJUDGMENT of Mr. Justice McMahon delivered on the 9th day of December, 2008

The notice party was charged with the following offence:-

"On the 18th March, 2006 at Lismeegan, Aughamore, Mayo a public road in the said District Court area of Ballyhaunus did drive a mechanically prepared vehicle Registration No. 03RN705 at a speed which exceeded the national road speed limit of 100km per hour applicable to the said road by virtue of section 7 of the Road Traffic Act, 2004.

Contrary to section 47 of the Road Traffic Act, 1961 (as inserted by section 11 of the Road Traffic Act, 2004) and section 102 of the Road Traffic Act, 1961 (as amended by section 23 of the Road Traffic Act, 2002)."

The summons was returnable to Ballyhaunus District Court on 15th November, 2006. The matter was adjourned on a couple of occasions and on 25th June, 2007, Mr. O'Dwyer, solicitor for the notice party, wrote to the superintendent requesting 29 separate categories of disclosure. Twelve of the inquiries related to the hand held computer ("the electronic notebook") used by the gardaí and seventeen related to the processing of the fixed charge notice in relation to the handheld computer. Requests were made for disclosure of the operators' manual, copies of the software licence for the computer, copy of the certificate of competency of the operator and the certificate of competency in the training of the instructor, etc. As to the processing of the fixed charge notice similar requests were made in relation to the software used, the manufacturer's guidelines and handbook, the names of non-garda personnel involved in the processing of data, etc. Although some efforts were made by the State Solicitor to negotiate an agreement in respect of some of the items sought, sufficient progress was not made to satisfy Mr. O'Dwyer. He, therefore, brought a notice of motion returnable on 19th September, 2007, seeking an order for disclosure of all the items listed in the letter seeking voluntary discovery, as well as an order for costs under O. 31, r. 1 of the District Court Rules 1997. In his grounding affidavit, Mr. O'Dwyer claims that the items being sought are of particular relevance because, in April 2006, An Garda Síochána without any statutory basis or public consultation introduced a new system for the processing of fixed charge offences (within the meaning of the Road Traffic Act 2006). In his affidavit, he goes on to describe in detail the old system whereby when a motorist was detected as being in contravention of the Act the prosecutor would complete the fixed charge notice by hand at the road side in a notebook. In contrast, according to Mr. O'Dwyer's affidavit in April 2006, a new procedure was introduced:-

"A new procedure was adopted which was primarily based on Itronix electric handheld computers. The procedure now employed by the gardaí involved the detection by the prosecutor of the motorist of an alleged offence in the same way as it was in the old regime. Thereafter however the prosecutor must now use a hand held computer by the direction of An Garda Síochána. The details of the motorist are inputted by the prosecutor into the handheld computer." (at para. 6 of the grounding affidavit).

Mr. O'Dwyer continues in his affidavit to outline the subsequent processing of the complaint and the electronic transfer to the mainframe computer at the Garda Headquarters, Phoenix Park, Dublin. Without the detailed information of the process Mr. O'Dwyer claims that he is at a disadvantage and his client cannot get a fair trial. Mr. O'Dwyer also refers in his affidavit to the fact that voluntary disclosure has been refused and that he believes "that there [is] a concerted effort being made to conceal the information about how the motorist's details are being processed". (Idem at para. 12)

He further alleges that the procedure is clearly flawed and that this is known by persons in the highest position in An Garda Síochána to be a fact. He claims the prosecutor themselves are giving evidence in ignorance. (Idem at para. 15.) He further avers that it is anticipated that there will be further applications seeking voluntary disclosure for all fixed charge offences coming before the courts. Finally, he claims that there is a veil of secrecy over the entire procedures as introduced and now employed by An Garda Síochána.

Mr. O'Dwyer also refers to another prosecution, namely Director of Public Prosecutions v. Oliver Sweeney (Unreported, District Court, Geoffrey Browne J., 21st February, 2007) where the respondent herein also made a "Gary Doyle Order" on a previous occasion. Subsequently, in that case, the State Solicitor for Sligo applied to have the case struck out. Mr. O'Dwyer claims that that was a "test a case". This is denied in the affidavit sworn by Seamus Hughes for the Director of Public Prosecutions as indeed are many of the statements made by Mr. O'Dwyer in his affidavit. In Director of Public Prosecutions v. Oliver Sweeney (Unreported, District Court, Geoffrey Browne J., 21st February, 2007), the State claims that the case was dropped because they could not comply with the disclosure order made (which also related to 29 categories of disclosure in a speeding case) and there was no "relevancy hearing" and no expert evidence called by either the defence or the prosecution. In a third case, it appears that the State Solicitor indicated that disclosure could be made in relation to some of the categories identified, but not all.

In his grounding affidavit for the relief sought in these proceedings, Seamus Hughes, State Solicitor for the County of Mayo set out what happened in the District Court on the day the respondent herein made the disclosure requested by Mr. O'Dwyer, the solicitor for the notice party. For reasons that will become obvious at a later stage I set out in full his account hereunder.

"22. After Mr. O'Dwyer concluded and urged on the court to make the Order for Discovery, the Respondent asked me to address him. I pointed out to the Respondent that I was in Court representing the State to set out the State's attitude towards correspondence received from Mr. O'Dwyer seeking discovery in respect of 29 separate categories. I said I had replied to his correspondence indicating which of those matters the State was in a position to make discovery of and those matters which the State was not in a position to make discovery of. I referred Judge Browne to Eamon Cahill's book on Discovery in Ireland pp. 74-75, I pointed out that the discovery in this case related to Fixed Penalty Offences of which there are approximately 50, such as speeding, failure to wear seatbelts and similar type summary offences. I said to the best of my knowledge none of the 50 offences was the hybrid type which could be tried both summarily and/or on indictment but they could only be tried summarily. In the main they were minor road traffic offences in the overall regime of road traffic offences.

  1. I pointed out that it was a matter for the Applicant to prove the relevancy of the information sought. As the prosecuting Garda was in a position to give evidence of stopping the motorist for the offence detected, the motorist would be aware of what offence he was detected for. Subsequently this information was transmitted electronically to a Central Processing Unit and the motorist in due course received a Notice, being a Fixed Penalty Notice giving him 28 days in which to discharge the penalty and in failing to do so a summons would issue automatically from the Central...

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