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  • Writer's pictureOSK

The postman doesn't always deliver!

Updated: Jan 23, 2020

(Matthew Kenny looks at developments in the law relating to fixed charge penalty offences)

Solicitors who practice in the area of criminal and road traffic law may be aware of the recent High Court judgment of Justice Ni Raifeartaigh (now of the Court of Appeal) in Neville and O'Byrne v The DPP. The relevant impugned provision is;

Section 44(10);

"(10) Where a person is served with a summons accompanied by a section 44 notice in respect of a fixed charge offence, it shall not be a defence for the person served with the summons to show that he or she was not served with a fixed charge notice in respect of the alleged offence in accordance with section 35 "

Section 35(2);

"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."

The legal basis for the suggested practical application of the judgment of Ni Raifeartaigh is stated simply in her judgment. Judge Ni Raifeartaigh has decided that the tension which exists between section 44(10) of the 2016 Act and section 35(2) of the 2010 Road Traffic Act cannot to reconciled by the State's suggestions that the different treatment of the varying types of motorists is not significant or if it is it was clearly the intention of the legislator to remove this defence (presumably as they were getting a third and final chance to avoid a conviction on receipt of a section 44 yellow notice). However Ms Justice Ni Raifeartaigh's judgment is clear and rules that section 44(10) is unlawful and denies an defendant the right to a fair trial as they are not allowed to raise a defence of not having received the fixed charge notice.

Now that section 44(10) is no longer law defendants can rely on section 35(2) of the 2010 Act and the fact they did not receive the fixed charge notice as a defence to to the substantive allegation. To understand how Judge Ni Raifeartaigh arrived at her conclusion we should summarise her judgment and the law on fixed charge notices to date. Fixed charge notices are designed to relieve the offending motorist, detecting Gardai or local authority and Court Services of having to administer justice within an already busy Court list. In her judgment Judge Ni Raifeartaigh told the rather colourful and helpful hypothetical story of three different types of offenders who may receive a fixed charge notice. They are the motorist who commits a fixed charge offence, receives the fixed charge notice and pays the fixed charge within 56 days having accepted the fixed penalty. The second motorist is the person who may or may not have commited the fixed charge offence but did not receive the fixed charge notice and when they receive the summons decide to attend Court and rely on the fact they did not receive the fixed charge notice in their defence. The third motorist is the classic 'chancer' who commits the offence, receives the fixed charge notice but ignores it and hopes it will all go away. It is the second type of motorist that this judgment protects.

The effect of the judgment is that a solicitor ought to take the following road map (sorry for pun);

- To establish from the Gardai/prosecution authority if they sent the fixed charge notice by ordinary post or other means.

-To establish if the State accept that they can only prove postage and not receipt of the fixed charge notice.

-If necessary establish in evidence from the Gardai that their method of post was as per their pre-Court disclosure.

- It is a matter for experienced solicitor to decide if they must call their client or any other witness to rebut the presumption but it would seem that the extent of the logic of the judgment of Ni Raifeartaigh is in fact that the presumption could be rebutted by the admission in evidence by the prosecution witness that they can only prove they sent the notice and not that the defendant received it.

-It is suggested that Ms Justice Ni Raifeartaigh interpreted "served" in the legislation as meaning "posted and received" and therefore if a defence solicitor raises the issue of service and cross examines the Garda witness to confirm they posted but cannot offer evidence of service then arguably the presumption has been rebutted as the Court has a reasonable doubt.

-However this final and critical issue is one that is still unclear. It is already the practice of most Judges to decide the issue of receipt by the defendant on the balance of probabilities and therefore expect to hear evidence from the defendant or a witness for the defendant (a stay at home partner/spouse who may take receipt of the post).

- So it is arguable that once a defendant raises the defence of non-receipt of the fixed charge notice, then the Court ought to decide the issue on a reasonable doubt rather than on the balance of probabilities.

If the Court accepts that your client did not receive the fixed charge notice then the Court must dismiss the summons relating to the fixed charge offence. The Court has no discretion, it cannot decide that your client did not receive the fixed charge notice but proceed to hear the substantive offence (usually speeding or holding a phone). The analogy to be drawn for the reasoning of Judge Ni Raifeartaigh is to those cases where the defendant suggests the prosecution was commenced out of time and proves to the Court the fact the prosecution was commenced out of time. Whilst the time limit to commence minor offences is not an ingredient of those same offenses, the practice and procedures of the District Court and the legislation which allows for the commencement of minor offences is a relevant proof. If the defence seek to challenge the issue of the time limits then, similar to the issue of service of a fixed charge notice, they are permitted to do so according to law and to deny them that right on the basis it does not go to the merits of the offence before the Court is not a legitimate response by the State.

So whilst the law is fluid and may be updated by legislation or an appeal to the Supreme Court it seems that for now the prudent advice to a client whose instructions relate to this recent judgment is to consider contesting the service.

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