Mazarache v The Commissioner of an Garda Siochana and Others

• Jurisdiction: Ireland
• Judge: Ms Justice Nuala Jackson
• Judgment Date: 17 January 2023
• Neutral Citation: [2024] IEHC 67
• Court: High Court
• Docket Number: Record No. 2021 497 JR

Between:

Florin Mazarache

Applicant

and

The Commissioner of An Garda Siochana and The Director of Public Prosecutions and The Minister for Health

Respondent

Between:

Nicolae Mazarache

Applicant

and

The Commissioner of An Garda Siochana and The Director of Public Prosecutions and The Minister for Health

Respondent

[2024] IEHC 67

Record No. 2021 497 JR

Record No. 2021 502 JR

THE HIGH COURT

JUDICIAL REVIEW

Judgment delivered byMs Justice Nuala Jacksonon the 17 ^th January 2023.

INTRODUCTION

1 The matter at issue herein is a net issue but an important one. Although two reliefs were sought in the Statement of Grounds, at hearing it was conceded that that only one such was being progressed namely:

“An injunction by way of an application for Judicial Review restraining the respondents their servants or agents or any person having notice of same from taking any steps to prosecute the applicant for any offence arising from his failure to makethe fixed payment provided for in the impugned Notice, the Notice in question being a Fixed Payment Notice (‘FPN’) pursuant to Section 31C of the Health Act, 1947 as amended.”

2 The Applicants in these two identical sets of proceedings assert that there has been procedural unfairness on the part of the Respondent prosecuting authorities such that injunctive relief as aforementioned is appropriate because:

• (i) The FPN alleges an offence under Section 31A(6)(a) and 31A(12) of the Health Act 1947 as amended (‘the 1947 Act’) without specifying the offence in question;

• (ii) The FPN is therefore bad on its face for want of specificity;

• (iii) The FPN impugned herein does not sufficiently state the particulars of the alleged offence as required by Section 31C(1)(b) of the 1947 Act as amended.

• (iv) The applicant is at risk of being prosecuted for failure to pay a charge of €2,000 in respect of an offence the details of which are not specified adequately or at all.

3 While the Statement of Grounds refers to a failure to show jurisdiction on the face of the FPN, it was accepted by the Applicants at the hearing that this was not an applicable ground in the circumstances of the present case and no such argument was proceeded with at hearing.

4 The factual background to this matter involves the Covid pandemic and restrictions imposed at that time. Section 31A of the 1947 Act permitted the making of regulations by the Minister in the context of the public health risks posed at that time. Such regulations were made by the Minister. Section 31A(6) of the 1947 Act provides, inter alia, that ‘a person who contravenes a provision of a regulation made under subsection (1) that is stated to be a penal provision, … shall be guilty of an offence.’ In the circumstances of such offences, Section 31C of the 1947 Act provides for a “fixed payment notice” (‘FPN’) regime. As this provision is at the kernel of the present case, I will recite Section 31C in full:

31C. (1) Where a member of the Garda Síochána has reasonable grounds for believing that a person has committed an offence consisting of a contravention of a fixed penalty provision, that member may give to the person a notice in writing (in this section referred to as a “fixed payment notice”) in the prescribed form stating—

(a) that the person is alleged to have committed that offence,

(b) particulars of that alleged offence,

(c) that the person may, during the period of 28 days beginning on the date of the notice, make to such person as is specified in the notice at such place as is so specified a payment of such amount as may be prescribed being an amount of not more than F55 [€2,000], accompanied by the notice,

(d) that the person is not obliged to make the payment specified in the notice, and

(e) that a prosecution of the person to whom the notice is given in respect of the alleged offence will not be instituted during the period of 28 days beginning on the date of the notice and, that if the payment specified in the notice is made during that period, no prosecution in respect of the alleged offence will be instituted.

(2) Where a fixed payment notice is given under subsection (1)—

(a) the person to whom it applies may, during the period of 28 days beginning on the date of the notice, make to such person, and at such place, as is specified in the notice the payment specified in the notice, accompanied by the notice,

(b) the person specified in the notice may, upon receipt of the payment, issue a receipt for it and any payment so received shall not be recoverable by the person who made it, and

(c) a prosecution in respect of the alleged offence shall not be instituted in the period specified in the notice, and if the payment so specified is made during that period, no prosecution in respect of the alleged offence shall be instituted.

(3) In proceedings for an offence consisting of a contravention of a penal provision it shall be a defence for the defendant to prove that he or she made a payment, in accordance with this section, pursuant to a fixed payment notice issued in respect of that offence.

(4) Moneys received pursuant to the giving of a fixed payment notice shall be paid into or disposed of for the benefit of the Exchequer.

(5) A fixed payment notice may be given to a person in one of the following ways:

(a) by giving it in person to the person;

(b) by sending it by post to the address at which the person ordinarily resides.

(6) For the purpose of this section, a company within the meaning of the Companies Act 2014 shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body of persons shall be deemed to be ordinarily resident at its principal office or place of business.

5 There are a number of notable features of this statutory provision:

A. It is a discretionary regime, the discretion being vested in a member of the Garda Siochana. In this regard, these legislative provisions differ from others in this jurisdiction providing for fixed payment notices, particularly those in the context of road traffic offences, where such notices are mandatory in nature. During the course of the hearing, I enquired of Counsel for both sides as to whether they were aware of any other legislation in which provision for FPNs on a discretionary basis was made and the answer was in the negative. Having regard to the jurisprudence in relation to mandatory fixed payment notices, one of the main challenges in the context of the within application is to determine the extent, if any, to which the discretionary nature of the FPN herein is relevant to the issues under consideration herein. It should be stated that fixed charge notices, the use of which is in the discretion of the police authorities, have been considered by the English courts and it is clear from these decisions that the objectives sought to be achieved through such notices is the same whether their invocation is mandatory or discretionary.R v Gore; R v Maher[2009] EWCA Crim 1424 concerned whether, subsequent to the exercise of such a discretion, prosecution could proceed for more serious offences arising from the same incident. Discussing the nature of a FPN and the distinction between service of such a notice and being charged with a criminal offence, Simon LCJ stated:

“9. …. Thus, the notice provides the opportunity to a potential defendant to discharge any possible liability to conviction on payment of the penalty. The liability is discharged on payment of the penalty.”

He continued:

“11. The penalty notice scheme provides a useful method for dealing with low level crime, for example, the sort of public disorder which occurs in city centres at night, which is troublesome and anti-social, without involving serious criminality. Payment of the penalty involves no admission of guilt on the part of the person to whom it is given, nor does not create a criminal record. These are important limitations.”

Unlike when an accused is charged, with the FPN there is no admission of guilt and no criminal record is created. As stated by Thomas LJ in R v. Hamer[2010] EWCA Crim 2053, which also involved such notice issued at the discretion of the police authorities:

“15. It is quite clear that the issue of a notice is not a conviction. It is not an admission of guilt nor any proof that a crime has been committed. The scheme of the Act makes that clear. Any person reading the form would plainly understand that it is not to be regarded as a conviction and will not be held against him save in the respect mentioned. It seems therefore clear, both as a matter of the statutory scheme and as a matter of what a person accepting such a notice would reasonably be led to believe, that he was not admitting any offence, not admitting any criminality, and would not have any stain imputed to his character.”

A similar analysis, albeit in the context of mandatory notices, is clear from the judgment of Ferriter J. in Cully v. The Minister for Transport, Tourism and Sport and Others[2022] IEHC 113 where it is stated:

“The fixed charge notice is not a summons or otherwise the formal commencement of the prosecution of a criminal charge. Acceptance of the penalties specified in the notice does not lead to a criminal conviction; indeed, such acceptance avoids prosecution and conviction.”

B. The legislation provides for a pre-requisite to the exercise of the jurisdiction granted by the section being that “a member of the Garda Siochana has reasonable grounds for believing that a person has committed an offence consisting of a contravention of a fixed penalty provision”;

C. The member concerned may then give to the person a notice in writing which offers them the option of paying an FPN.

D. The notice in writing must be in a prescribed form (and such prescription can be found in Health Act 1947 (Fixed Payment Notice and Dwelling Event...