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High Court Clarifies Position regarding Alleged Non-Receipt of Fixed Charge Penalty Notices

By: Patrick Mullins | Posted on: 16 Oct 2018

High Court Clarifies Position regarding Alleged Non-Receipt of Fixed Charge Penalty Notices

Court Clarifies Position regarding Alleged Non-Receipt of Fixed Charge Penalty Notices

 

By Patrick Mullins

 

Drivers of motor vehicles, in this country, are acutely aware of the various obligations to comply with provisions of the Road Traffic Acts.

 

Drivers are also aware that, in relation to minor road traffic offences, that a fixed-charge penalty notice, may be issued, for example, where a driver is apprehended, driving above the speed limit. In such a situation, the Garda will indicate to the driver that they can expect to receive a notice, in the post, requesting the driver to pay a fine, within a certain period of time. The Garda would advise a driver to pay that fine, within that time, to avoid the issuing of a Summons.

 

Furthermore, in circumstances where a fixed-charge penalty notice is not paid, then the Gardaí can issue a Summons, for the offence, e.g. speeding, and upon conviction, the driver will have twice the penalty points imposed, as would have been the case, had the fixed-charge penalty notice been paid.

 

Since the introduction of fixed-charge penalty notices, there has been a lot of to-ing and fro-ing, in the Courts, in relation to the manner of service, of these notices. In the normal scheme of things, the Gardaí issue these notices, by ordinary post, to the residential address of the driver, and obtain a certificate of postage. The fixed-charge penalty notices are not served personally, nor are they served, by registered post. There is no legal obligation upon a prosecutor to serve a fixed-charge penalty notice, by either registered post, or to serve such notice personally.

 

Section 103 of the Road Traffic Act 1961 (as amended) provides that:

 

In a prosecution for a fixed-charge offence it shall be presumed, until the contrary is shown, that-

(a)  The relevant notice under this section has been served or affixed or caused to be served or affixed; and

(b)  Payment pursuant to the relevant notice under this section accompanied by the notice duly completed (unless the notice provides for payment without the notice accompanying the payment), has not been made.

 

It has commonly been the case that members of the public have attended, at the District Court, and given evidence to the effect that they did not, in fact, receive the fixed-charge penalty notice. In some cases, the prosecutor agrees to withdraw the charges, having consulted with the driver, prior to the case coming on, for hearing. In other cases, District Court Judges have struck-out the charges, having heard the evidence of the driver, to the effect that the fixed-charge notice, has not been received.

 

However, it is clear that even if a Court is satisfied, that a fixed-charge penalty notice has not been received, the Court can still proceed to convict, in relation to the offence, that is before the Court. In other words, if the driver is charged with speeding, and gives evidence in Court, that he/she did not receive the notice, then the District Court Judge can note that position, and still proceed to convict, on the facts, for speeding.

 

Some welcome clarity, in relation to the matter, has been given by the High Court, in two recent High Court decisions. The first decision is that of Mr. Justice McDermott, delivered on the 20th of July 2018, in the case of Martin Kinsella v. the Director of Public Prosecutions. The second decision is that of Ms. Justice Tara Burns, on the 30th of July 2018, in the case of the Director for Public Prosecutions v. Fraser Brown.

 

The Kinsella case concerned a judicial review, brought by Mr. Kinsella, against the District Judge, who heard a prosecution against him. The transcript from the hearing was produced, in the course of the judicial review application. At the hearing, Mr. Kinsella’s solicitor sought to adduce evidence, of the non-receipt of the fixed-charge penalty notice.

 

The District Judge effectively held that the notices were an administrative matter, and simply wanted to know whether Mr. Kinsella was pleading guilty, or not guilty. Whilst Mr. Kinsella gave some evidence, in relation to the non-receipt of the notice, the District Judge indicated that he was not interested in administrative functions, and that he was dealing with the Summonses, which were listed, before the Court. The District Judge proceeded to convict Mr. Kinsella.

 

The High Court had to then consider whether the District Judge was under an obligation, to consider the evidence of non-receipt of the fixed charge penalty notice, before reaching a decision, in the case. Mr. Justice McDermott held that, in the event that the prosecutor was in a position to prove that the notice was posted, then that created a rebuttable presumption, that the notice was served. There is no obligation on the prosecutor to prove receipt of the notice.

 

Mr. Justice McDermott referred to the decision of DPP v. Kevin Tully and quoted from Judge White, whereby White J. stated:

 

“It is clear from the provisions of Section 103 (7) (d) of the Act that the effect of the service of the Fixed Penalty Notice is to postpone a prosecution for a specified period of time to allow the fixed penalty to be paid and if it is so paid, no prosecution will follow. If not, once a District Court Summons has been issued in accordance with the Courts (NO.3) Act 1986 and the complaint is made within the relevant statutory period, the non-receipt of a Fixed Penalty Notice is not an automatic bar to the Judge proceeding with the trial. If the essential proofs required for the offence are established, the trial Judge can convict. The fact that penalty points increase when a Court conviction arises, is not of itself a bar to conviction. There always remains vested in the Court, the discretion not to proceed to conviction if basic unfairness arises.”

 

Mr. Justice McDermott went on to hold that the purpose of a fixed-penalty notice, was to provide a driver with a quick and efficient method of acknowledging wrongdoing, and submitting to a lesser penalty, than that which might be imposed, after conviction. In so doing, a driver also avoids prosecution, and the recording of a potential conviction, for a criminal offence.

 

Mr. Justice McDermott went on to hold that the relevant provisions, were intended to ensure that a person, who is served with a fixed-penalty notice, is afforded the opportunity, within the prescribed period, to pay the penalty, and may not be prosecuted, during this period. He further held that if the penalty is paid, then the driver may not be prosecuted at all. However, if the penalty is unpaid, then a Summons may issue, based on an appropriate complaint.

 

Mr. Justice McDermott indicated that once the Summons had been duly served, the matter would then come before the Court, and the Court would be vested with full jurisdiction, to hear and determine the charges.

 

Mr. Justice McDermott indicated that a driver charged with a fixed-charge notice offence, is entitled to raise the non-service of the notice, or the payment of the fine, before the Court. Mr. Justice McDermott confirmed that it may be the case that a trial Judge may find, that the facts set out in the Summons were proven, and convict the accused, notwithstanding a submission,  in relation to non-receipt of the penalty notice. However, he indicated that a District Judge must entertain the submission ,and hear the evidence. He went on to state that the issue of non-receipt of the notice, may be relevant to the penalty, to be imposed, if the accused is to be convicted, and may provide a basis, upon which, a trial Judge might mitigate the penalty, to reflect the fact that the accused did not have the opportunity to pay the lesser sum, at an earlier stage, due to circumstances beyond his control.

 

Mr. Justice McDermott went on to say that the trial Judge could conclude that it would be entirely unfair, to record a conviction, against an accused, who has raised an issue as to service of the fixed-penalty notice, and dismiss the charge. These are matters, which are within the discretion, of the District Judge.

 

In that particular case, McDermott J. granted an Order of Certiorari, returning the matter to the District Court, for hearing before a different Judge of the District Court.

 

In the Fraser Brown case, Ms. Justice Burns affirmed the decision of McDermott J. and further confirmed that the law does not require proof of receipt, of a fixed-charge penalty notice.

 

In summary, it is therefore clear, that in instances where a driver does not receive a fixed-charge penalty notice, and is subsequently summoned to appear in Court, the driver may give evidence, if it be the case, that he/she did not receive the fixed-charge penalty notice.

 

A District Court Judge hearing that evidence, even if that evidence is accepted, can still proceed to convict, if satisfied with all other matters. It is clear, therefore, that the mere non-receipt of the notice, is not, in and of itself, a defence to the charge. However, proof of payment of the fixed charge notice, within the prescribed time, constitutes a full defence to a Summons, issuing in relation to the offence.

 

 

Patrick Mullins

BDM Boylan Solicitors

Clarkes Bridge House

Hanover Street

Cork City

pmullins@bdmboylan.ie

www.bdmboylan.ie

021 431 3333