DPP v Murphy

• Jurisdiction: Ireland
• Judge: Ms Justice Marguerite Bolger
• Judgment Date: 13 March 2024
• Neutral Citation: [2024] IEHC 147
• Court: High Court
• Docket Number: [Record No. 2022/529 SS]

Consultative Case Stated

In the Matter of Section 52 of the Courts (Supplemental Provisions) Act, 1961 (As Amended)

and

In the Matter of the Fines (Payment and Recovery) Act 2014

and

In the Matter of An Enforcement Process Consequent on Proceedings

Between:

DPP (At the Suit of Garda Paul Howard)

Prosecutor

and

Lisa Murphy

Defendant/Fined Person

and

The Courts Service

Notice Party

[2024] IEHC 147

[Record No. 2022/529 SS]

THE HIGH COURT

Counsel for the defendant: Feichín McDonagh SC, Maria Brosnan BL

Counsel for the prosecutor: Lily Buckley BL

Counsel for the notice party: Eoghan Cole SC, Alison Fynes BL

DECISION of Ms Justice Marguerite Bolger delivered on the 13th day of March 2024

1 . This is a case stated by District Judge Patricia Harney of the District Court pursuant to s. 52 of the Courts (Supplemental Provisions) Act 1961. The District Judge found the following facts:

Based on those facts, the District Judge requires the opinion of this Court to the following questions:

• (i) The Accused was convicted in the District Court of offences under the Road Traffic Acts and fines were imposed by way of penalty.

• (ii) The said fines were not paid within the time allowed therefor or at all.

• (iii) That the summonses giving rise to the aforementioned convictions had on their face an address for the Accused as 27 The Hawthorns, Kinnegad, Co. Westmeath.

• (iv) That the said summonses were served personally on the Accused at Fort Haven, Sligo on the 26th of November, 2016.

• (v) That in the course of a hearing in relation to the said prosecutions on the 9th of January, 2017 the Court was informed by the solicitor acting for the Accused that the Accused's correct address and her place of residence was 49 Fort Haven, Coolaney, Co. Sligo.

• (vi) That subsequently a notice in writing pursuant to the provisions of Section 7(4) of The Fines (Payment and Recovery) Act 2014 requiring the Accused to appear before the court on a specified date was issued.

• (vii) That a Declaration of Service of the said notice in writing was placed before the Court indicating that the said notice had been served upon the Accused by ordinary post and that the address specified thereon was 27 Hawthorns, Kinnegad. Co. Westmeath.

• (viii) The Accused failed to appear before the court on the date appointed and in the said notice.

• i. Can I find and deem that the Accused has been served with a Notice in writing issued pursuant to the provisions of Section 7 of The Fines (Payment and Recovery) Act 2014 on foot of a Declaration of Service by ordinary post where the address specified in the Notice and Declaration of Service is not the address at which the Accused ordinarily resides absent an alternative address for service having been provided or a direction from the Court regarding service?

• ii. Can I find that the Notice in writing issued in this case pursuant to the provisions of Section 7 of The Fines (Payment and Recovery) Act 2014 was properly and duly served upon the accused?

Statutory provisions

2 . Section 7 of the Fines (Payment and Recovery) Act 2014 provide as follows:

“7. (1) Subject to subsections (3) and (5), where a fined person fails to pay the fine by the due date for payment, the court shall, at the sitting of the court on the date specified in the notice concerned under subsection (4) served on the person (unless the person has paid the fine on or before that date)—

(a) subject to subsection (2), make a recovery order,

(b) make an attachment order, or

(c) make a community service order if section 4 of the Act of 1983 has been complied with.

(2) The court shall not make a recovery order in respect of the fined person (not being a body corporate) unless the fine or, as may be appropriate, that part of the fine that remains unpaid—

(a) exceeds such amount greater than €500 as may be prescribed, or

(b) if no such amount stands prescribed, exceeds €500.

(3) Where a fined person who has exercised his or her option under section 6 (1)(a)(ii) to pay the fine by instalments fails to pay any such instalment (in this subsection referred to as the “relevant instalment”) by the due date for payment, it is not necessary for the court to take action under this section in respect of the failure unless—

(a) there are 2 other failures by the fined person to pay that fine by instalments by the due date for payment, or

(b) the relevant instalment has still not been paid when all other instalments have been paid.

(4) The appropriate court official concerned shall, by notice in writing served on the fined person, require the person to appear before the court on the date and at the time specified in the notice, and to provide to the court a statement in writing of his or her financial circumstances.

(5) (a) The court shall, after considering a statement provided to it pursuant to subsection (4) in deciding what order to make under subsection (1)—

(i) first, give consideration to making an attachment order in respect of the fined person, and

(ii) second, if it is satisfied that it would not be appropriate for it to make an attachment order in respect of the fined person, give consideration to making, subject to subsection (2), a recovery order or community service order in respect of the fined person.

(b) Where the court is satisfied that it would not be appropriate for it to make an attachment order, recovery order or community service order in respect of the fined person, it may commit the person to prison in accordance with section 2 or 2A of the Act of 1986.

(6) A notice under subsection (4) shall—

(a) inform the fined person of the orders that the court may make under subsection (1) in respect of the person and of the court's power under subsection (5) to commit the person to prison, and

(b) state that a warrant may be issued for the arrest of the fined person if he or she fails to appear before the court as required by the notice.

(7) Where a fined person fails, without reasonable excuse, to appear before the court as required by a notice under subsection (4), the court shall, if satisfied that the notice was served on the person—

(a) issue a warrant for the arrest of the person, or

(b) if the court thinks it appropriate in all the circumstances, cause a further notice under subsection (4) to be served on the person specifying a new date for the person to appear before the court, and to provide it with the statement referred to in that subsection.

(8) A fined person arrested under subsection (7)(a) shall be brought before the next sitting of the court.

(9) A fined person who knowingly or recklessly makes a statement, in purported compliance with a notice under subsection (4), that is false or misleading in any material respect shall be guilty of an offence and shall be liable, on summary conviction, to a class B fine or imprisonment for a term not exceeding 6 months, or both.

(10) Rules of court shall prescribe the form of a statement referred to in subsection (4).”

Section 21(1) of the Act provides for service of the s. 7(4) notice and states:

“21. (1) A notice under this Act required to be served on a person shall be addressed to the person by name, and may be so served in one of the following ways:

(a) by delivering it to the person;

(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address; or

(c) by sending it by post to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to the address.”

Order 23, rule 8 of the District Court Rules, S.I. No 19 of 2016 provides:-

“8. (1) Where a fine has been imposed by the Court, there shall be issued by or on behalf of the Clerk a notice in the Form 23.2 Schedule B to the fined person stating that a fine has been imposed, the amount of the fine and the time within which the fine is to be paid. The notice shall inform the fined person of the option to pay by a single payment or by instalments, where allowed, in accordance with section 6 of the 2014 Act and of the consequences of failure to pay the fine by the due date for payment or, as the case may be, failure to pay a relevant instalment in the circumstances mentioned in section 7(3) of the 2014 Act, in accordance with section 7 of the 2014 Act. Any such notice shall be served by ordinary post on the person convicted at the address at which the person convicted ordinarily resides or, in a case in...