DPP (At the Suit of Garda Mervyn J. Forde) v Brian Tuohey

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 04 May 2021
• Neutral Citation: [2021] IEHC 357
• Docket Number: [2021 No. 497 SS]
• Year: 2021
• Court: High Court

Between

The Director of Public Prosecutions (At the Suit of Garda Mervyn J. Forde)

Prosecutor

and

Brian Tuohey

Defendant

[2021] IEHC 357

[2021 No. 497 SS]

THE HIGH COURT

JUDGMENT of Mr Justice Max Barrett dated 4th May 2021.

1 It is alleged that the defendant, on 23rd July 2017, drove a mechanically propelled vehicle while there was present in his body a quantity of alcohol such that, within three hours after so driving, the concentration of alcohol in his breath constituted an offence under the Road Traffic Act 2010. The matter came before the District Court on 10th December last. In that court, Garda Forde gave evidence that at 3a.m. on 23rd July 2017 he observed a mechanically propelled vehicle being driven by Mr Tuohey through the town of Gort without its lights turned on. He caused the vehicle to stop, formed the opinion that Mr Tuohey was intoxicated to such an extent as to be incapable of having proper control of a mechanically propelled vehicle in a public place, arrested Mr Tuohey on suspicion of drunk driving, and conveyed him to Gort Garda Station. There Mr Tuohey was breath-tested.

2 Under cross-examination by Mr Doherty (the solicitor for Mr Tuohey), Garda Forde, in the District Court, agreed that by virtue of the level of the reading of Mr Tuohey's breath following on the breath test, it was a case that fell to be dealt with by fixed penalty notice. Thereafter, Garda Forde proved (i) service of the fixed penalty notice by producing a computer print-out indicating that service was effected on 26th September 2017, and (ii) the fixed penalty notice by producing a copy of same which contained the following text: “ Date of Notice: 27/09/2017”. Mr Doherty then put it to Garda Forde that a document (the fixed penalty notice) which, on its face, did not exist on 26th September 2017 could not be served on that date. The consultative case stated, as drafted by the learned District Judge, continues:

“Sergeant Kevin McCahey, an Officer of An Garda Síochána attached to An Garda Síochána's Fixed Charge Processing Office gave evidence in relation to the printing, issue and service of FPNs [i.e. fixed penalty notices]. He said that each day at 3.00a.m. a secure file containing FPN Applications approved for issue is electronically transmitted to the postal service…and that the FPNs will be issued, printed, and served later that day. He said that these FPNs are dated the following day and the reason for this was to allow affected persons more time to deal with the FPNs served on them.”

3 Mr Doherty submitted that: a legal document, to have efficacy, must have a date, that this is the starting-point of a purposeful life of a legal document; a fixed penalty notice could not be served until it had a date; it was wrong for a fixed penalty notice to be appropriated a date which was clearly incorrect; and the post-dating arrangement was not a case of clerical error but a systematic error which contaminated the whole process of service of a fixed penalty notice.

4 Ms Casey, the State Solicitor for County Clare, said that the error was neither a factual error nor an error which misled the defendant, that it was an error capable of explanation, and was not at the end of the day a matter which made any difference. She submitted that although the applicable legislation is silent as to any requirement that the date on the notice be prior to the date of postage, it was clear that what was done was to allow the accused the full benefit of the 28 days to pay. And she submitted that in the event that accused persons were...