Kennedy v Gibbons

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 20 February 2014
• Neutral Citation: [2014] IEHC 67
• Docket Number: [2013 No. 565JR]
• Court: High Court
• Date: 20 February 2014

BETWEEN

JOSEPH KENNEDY

APPLICANT

AND

DISTRICT JUDGE CONAL GIBBONS

RESPONDENT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTY

[2014] IEHC 67

[2013 No. 565JR]

THE HIGH COURT

Judicial review – Road traffic offence - Speeding - Guilty plea - Sentencing options - Donation to the court poor box in lieu of a formal conviction - Jurisdiction - Mandatory imposition of penalty points - Common law powers - Road Traffic Act 1961 - Road Traffic Act 2002 - Probation of Offenders Act 1907 - Constitution of Ireland

Facts: This application for judicial review was brought by the applicant against a decision of the respondent. The applicant was charged in the District Court with the offence of speeding, contrary to s. 47 and s. 102 of the Road Traffic Act 1961 (as amended). The respondent was the presiding District Judge. Pursuant to the Road Traffic Act 2002 (‘the 2002 Act’), the maximum penalty for such an offence is a fine of €1,000, together with an endorsement of four penalty points on the offender”s driving licence. The applicant pleaded guilty to the offence and asked the respondent to strike out the proceedings and instead accept a donation to the court poor box in lieu of a formal conviction. The respondent declined to consider this option and proceeded to convict the applicant.

The applicant initiated an application for judicial review of the respondent”s decision arguing that the respondent had failed to consider a legitimate sentencing option. In response, the respondent argued that because the applicant had pleaded guilty to the charge of speeding, he did not have jurisdiction to consider the option that was suggested. It was pointed out that the imposition of penalty points in respect of the offence was made mandatory by statute.

Held by Hogan J. that when sentencing an offender, the District Court has a common law power to accept a donation to the poor box in lieu of proceeding to a formal conviction. It was clear that, although the origins of this practice were obscure, its use was widespread before and after the formation of the Irish state; therefore, it was held that it was part of the common law that was adopted into the modern Irish legal system by Article 50.1 of the Constitution of Ireland.

It was also held that the respondent had had no jurisdiction to strike out the proceedings, even though an offer of a donation to the court poor box in lieu of a formal conviction had been made. It was said that by imposing a mandatory penalty point regime in the 2002 Act, the Oireachtas had intentionally restricted the District Court”s sentencing options following a conviction of a relevant road traffic offence, which clearly superseded any contrary common law. It was also pointed out that because s. 55 of the Road Traffic Act 2010 provides for the disapplication of s. 1(1) of the Probation of Offenders Act 1907 to the offence of speeding (and other road traffic offences), the power to dismiss the charge against the applicant despite his guilty plea, had not been available.

Relief sought refused.

Mr. Justice Hogan

JUDGMENT of Mr. Justice Hogan delivered on 20th February, 2014

1 Where the imposition of penalty points in respect of a traffic offence is made mandatory by statute and where the accused does not dispute the offence, does a District Court judge have any jurisdiction to strike out the proceedings in return for the accused making a donation to the court poor-box? This is the essentially the issue which is presented by the present application for judicial review.

Some preliminary observations

2 Before considering the actual facts of this case, some preliminary observations may be called for. First, the actual origins of the court poor box system is uncertain and remains shrouded in mystery. As the Law Reform Commission observed in its Consultation Paper, The Court Poor Box [2004] IELRC CP 31 at paras. 1.03-1.06:

‘It is incontrovertible that the court poor box system is a long established tradition, predating the foundations of the State. It has been suggested by some that its provenance can be linked to the alms box as administered by the Church in feudal times. Others suggest that the roots of the concept can be found in the Brehon laws….Under Brehon law, the relief of the destitute was the responsibility of a relieving officer appointed for that purpose; this officer was empowered to levy a rate on landowners for the maintenance of the ‘wretched and wandering poor’….. It has also been suggested that the court poor box has as its origin the ‘Elizabethan Poor Law’. The statute 43 Elizabeth c. 2, 1601 ‘An Act for the relief of the poor’…..concerned the imposition of the poor rate and its administration, with section 15 providing:

“That all the surplusage which shall be remaining in the said stock of any county, shall by discretion of the more part of the justices of the peace in their quarter session be ordered, distributed, and bestowed for the relief of the poor hospitals of that county, and of those that shall sustain losses by fire, water, the sea, or other casualties, and to other charitable purposes, for the relief of the poor, as to the more part of the said justices of the peace shall seem convenient.”

Although it is thus possible to identify a number of possible sources from which the court poor box system evolved, it is not possible to state with certainty which, if any, of these sources is the antecedent. Perhaps it may be the case that the concept evolved from an amalgam of these sources. Nevertheless, it is beyond doubt that the practice of allowing an offender to make a payment to the court poor box as an alternative to conviction and sentence where, in the circumstances of the case, the court takes the view that a conviction would be unduly harsh, is now regarded by some judges as a familiar feature of the common law, and applied accordingly. However, its application remains solely a matter for individual judges, and it is beyond doubt that there is serious inconsistency in the use of the court poor box… Whilst there are many reasons for the non-application, or limited application, of the court poor box it may well be that a factor in some judges” hesitation in utilising the court poor box is the somewhat uncertain status the court poor box enjoys in Irish law.’

3 It may well be that the practice ultimately evolved from the days in which justices of the peace (the precursor of the modern District Judges) had a variety of duties, not all of them judicial. Some of those responsibilities included the administration of the poor laws, so that it would perhaps have been only natural that income from fines was then applied by the self-same justices to assist with their non-judicial duties, including the relief of the poor.

4 While the practice has itself no statutory basis and while there is a paucity of case-law on the point, the poor box system was nevertheless so widespread and inveterate through out the State both before and after 1922, that it must accordingly be regarded as part of the common law which was carried over into our modern legal system by Article 50.1 of the Constitution, its obscure and uncertain origins notwithstanding. Although, moreover, the existence of such a jurisdiction is not to be found in any of the acknowledged sources - such as textbooks or decisions of venerable judges of some antiquity - referencing the pre-1937 common...