Gary Cully v The Minister for Transport, Tourism and Sport and Ireland and The Attorney General
| Jurisdiction | Ireland |
| Judge | Mr Justice Cian Ferriter |
| Judgment Date | 24 February 2022 |
| Neutral Citation | [2022] IEHC 113 |
| Docket Number | RECORD NO: 990/2020 JR |
| Court | High Court |
[2022] IEHC 113
RECORD NO: 990/2020 JR
THE HIGH COURT
JUDICIAL REVIEW
Judicial review – Endorsement of penalty points – Disqualification from driving – Applicant seeking an order of certiorari quashing the endorsement of penalty points and his disqualification from driving – Whether s. 37 of the Road Traffic Act 2010 is repugnant to the Constitution
Facts: The applicant, Mr Cully, received a fixed charge notice alleging he was driving at 143km per hour in a 100km per hour zone. He chose not to contest same. He paid the minimum penalty within 28 days and incurred 3 penalty points. The applicant applied to the High Court seeking an order of certiorari quashing the endorsement of 3 penalty points, and his disqualification from driving for a period of 6 months imposed on him with effect from 9th November 2020, on the entry in the driving licence record relating to him. The applicant also sought a declaration that “s. 37 of the Road Traffic Act, 2010, as amended, is repugnant to the Constitution having regard to the provisions of Bunreacht na hÉireann and especially the guarantee to a trial in due course of law contained in Article 38.1 and the right to be held equally before the law and to fair procedures in Articles 40.1 and 40.3.1 respectively”. The applicant contended that s. 37 was repugnant to the Constitution as entailing a breach of various constitutional rights, including his rights to fair procedures under article 38.1 of the Constitution, his right to earn a livelihood under article 45.2 and his right to equality before the law under article 40. He complained that the section failed to afford him a right to appeal a fixed charge notice in a process which would allow a dispute between him and the accusing member of An Garda Síochána, as to whether he had committed the speeding offence, to be resolved outside of the criminal court context, and without the risk of higher penalties if the conflict were resolved against him. He had expressed that right in various different ways in his pleadings including, in a paragraph in an affidavit sworn by his solicitor in response to the statement of opposition and the affidavits filed in opposition by the respondents, by asserting a right “to fully contest each and every allegation without having to go to court”.
Held by Ferriter J that the applicant was not in any of the exceptional categories of motorists receiving fixed charge notices who might qualify to have their fixed charge notices cancelled under the extra-statutory scheme operated by An Garda Síochána. Ferriter J held that the effect of the incurrence of those penalty points as a novice driver, when added to the previous penalty points incurred by the applicant, was to lead to automatic disqualification. Ferriter J held that the applicant was not compelled to take the step of paying the fine and incurring the penalty points, and therefore disqualification. Ferriter J held that the applicant could have exercised his right to have a trial in due course of law in the District Court, with the presumption of innocence and the benefit of full fair trial rights; he elected not to do so. Ferriter J held that the applicant had no right, in the alternative, to some form of statutory scheme which would allow him to challenge the allegation of speeding in an out-of-court process. Ferriter J held that the applicant was treated exactly as all other motorists in his category are treated under the legislation. Ferriter J held that the applicant’s constitutional challenge was misconceived in all the circumstances and must fail.
Ferriter J refused the relief sought.
Application refused.
Judgment of Mr Justice Cian Ferriter delivered this 24th day of February 2022
In these proceedings, the applicant seeks an order of certiorari quashing the endorsement of three penalty points, and his disqualification from driving for a period of six months imposed on him with effect from 9th November 2020, on the entry in the driving licence record relating to him. The applicant also seeks a declaration that “s. 37 of the Road Traffic Act, 2010, as amended, is repugnant to the Constitution having regard to the provisions of Bunreacht na hÉireann and especially the guarantee to a trial in due course of law contained in Article 38.1 and the right to be held equally before the law and to fair procedures in Articles 40.1 and 40.3.1 respectively”.
The background to the matter is as follows. The applicant was apprehended by Garda Cyril Page on 27th September 2020 on the N18 dual carriageway near Bunratty, County Clare. Garda Page has sworn an affidavit in these proceedings in which he says that he was on duty conducting speed detections on that date near Bunratty. He avers that, while using a handheld laser speed detection device, he detected a vehicle, which was the applicant's vehicle, travelling at a speed of 143km per hour, which was 43km per hour in excess of the applicable speed limit of 100km per hour for that section of the road. He avers that he subsequently stopped the vehicle and spoke to the applicant, who gave him his name, address and date of birth. Garda Page avers that he informed the applicant that the reason for stopping him was because he was travelling at 143km per hour in a 100km per hour zone. Garda Page informed the applicant that he would receive a fixed charge notice in the post and took the applicant's details in his notebook.
Garda Page avers (and the applicant does not deny) that the applicant did not seek to dispute the speed at which he was travelling nor did he advance any extenuating circumstances for his speed.
Following the incident, the applicant was issued and served with a “Fixed Charge Notice” dated 2nd October 2020 (“the fixed charge notice” or “FCN”) pursuant to section 36 Road Traffic Act 2010 as amended in respect of the alleged speeding offence committed on 27th September 2020 on the N18 at Bunratty West County Clare namely that he was driving at a speed of 143 km when the speed limit was 100km.
The fixed charge notice informed him that he could pay a fixed charge of €80 within a period of 28 days, or €120 within a further period of 28 days and that he would not be prosecuted if he made the correct payment during either of those periods. The notice further informed him that if he paid the penalty within the specified periods, 3 penalty points would be endorsed on his driving licence.
The notice also informed him that if he did not pay the fixed charge and if he was convicted of the alleged offence, 5 penalty points would be endorsed on his licence.
The applicant paid the €80 penalty on 5th October 2020 and 3 penalty points were endorsed on his driving licence.
As the applicant was already on 5 penalty points, and was a novice driver, the incurrence of the 3 extra penalty points arising out of the speeding offence of 27th September 2020 resulted in him receiving a “notification of disqualification caused by penalty points” dated 12th October 2020 (“the disqualification notice”) notifying him that, as he had exceeded the maximum number of penalty points allowed for a licence holder of his type of full licence, he would be disqualified from driving for a period of 6 months commencing 9th November 2020.
Part 3 of the Road Traffic Act, 2010, as amended, is headed “ Fixed Charge Offences and Notice”.
Section 34 provides that Part 3 applies in respect of “ fixed charge offences”, which are thereafter defined.
Section 35(1) provides for a member of An Garda Síochána to serve or cause to be served a fixed charge notice on a person where the member has reasonable grounds for believing that a fixed charge offence is being or has been committed by a person. Section 35(2) provides that:
“A prosecution in respect of a fixed charge offence shall not be instituted unless a fixed charge notice in respect of the alleged offence has been served on the person concerned under this section and the person fails to pay the fixed charge in accordance with the notice.”
Section 36 sets out the matters which shall be contained in a fixed charge notice.
Section 37 (“s.37”) is described in its marginal note as “Payment of fixed charge”. It provides as follows:
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(1) Where a notice is served or affixed under section 35(1) or served under section 35(9)—
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(a) a person or the person to whom the notice applies may, during either 28 day period specified in the notice and in accordance with the notice, make a payment specified in the notice,
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(b) the payment—
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(i) may be received in accordance with the notice and the person receiving the payment may issue a receipt for it, and
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(ii) shall be paid into or disposed of for the benefit of the Exchequer as the Minister for Public Expenditure and Reform directs,
and shall not be recoverable by the person who made it,
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(c) a prosecution in respect of the alleged offence to which the notice relates shall not be instituted during either 28 day period specified in the notice or, if a payment so specified is made during either such period in accordance with the notice, at all,
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(d) in case the notice is served or affixed under section 35(1)(b) and a payment aforesaid in accordance with the notice is so made, the registered owner need not comply with section 35(6), and
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(e) if the registered owner complies with section 35(6), the payment aforesaid need not be made by the registered owner and a prosecution of the registered owner in respect of that alleged offence shall not be initiated.
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(2) Subject to section 44, the payment of a fixed charge shall not be accepted after the expiration of the second 28 day period specified in the fixed charge notice.
It will be seen that s.37 gives...
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