Legal aid for a constituntional challenge

Our man in Havana

Is a citizen entitled to legal aid if he wishes to challenge the constitutionality of a law (Road Traffic act 2004 for example)?

Would such a case need to start in the District courts and proceed by way of appeals to the High court or would it start out in the high court in the first place. I know that the state would have the AG and heavy weight SC's fighting their corner, just wondering would Joe Public be entitled to the same?

hullaballoo

You need locus standi to begin with. Without it, you cannot take an action at all.

I had a conversation about this last night, and I am of the opinion that constitutional challenges when taken on their own tend to fail. Usually most things that are held to be unconstitutional are either referred by A 26, or else come to light on foot of claims for other things altogether, where a constitutional challenge has been thrown in as a coverall.

When that Act was first brought in, I pointed out that it was more than likely to be unconstitutional. I assume somebody who is caught under it could use the defence that it's unconstitutional, but again, it's unlikely to ever happen.

In order to bring the claim, you would have to begin in the District court, and then it would (probably) go straight to the Supreme Court as they're the only power that can make pronouncements on the constitutionality of things.

As for legal aid, I suppose it could be given. I mean, assuming you're prosecuted as a criminal under the act. Once it's not a civil action, I don't see why not.

Our man in Havana

Thanks for that.

I if I were ever caught under s47 I would certainly give the challenge a go. Would the district court judge be obliged to refer the case to the supreme court or would it be likely the judge would convict and tell me to get lost?

aphex™

Bond-007 wrote:

Thanks for that.

I if I were ever caught under s47 I would certainly give the challenge a go. Would the district court judge be obliged to refer the case to the supreme court or would it be likely the judge would convict and tell me to get lost?

I thought that Act only has 36 sections in it?

hullaballoo

aphex&#8482 wrote:

I thought that Act only has 36 sections in it?

Yeah, you're right. S 47 of the Road Traffic Act 1961 (the principle act) is amended by s 11 of the 2004 Act.

It relates to speeding. I don't think there's anything unconstitutional about it though. Bond?

Our man in Havana

I mean s47 RTA 1961 as ammended and distorted by the RTA 2004. Its in relation to the fact that Gardai are not obligled to show proof of speed gun readings or calibration proof to the accused in order to form a defence that the instrument was faulty.

It is assumed that any speed meter is functioning correctly, but this cannot be challenged as the Gardai won't handover proof of calibration.

hullaballoo

Well, I can tell you that that would fail. There's a very strong public policy issue in favour of not compelling that sort of evidence.

Our man in Havana

Why not? It seems that the Gardai could be using faulty scopes and accusing people in the wrong. What happened to Innocent till proven guilty? Does natural justice not come into it? What about europe?

How is one supposed to disprove a gardas evidence if they won't submit to verification?

popebenny16

No, there are certain issues with the act, I have actually been invited by a District Court Judge to challenge it, the problem is that most clients dont have the funds for it, it's a simple equation, if it's your first penalty points and you're not risking ban - why bother? With a client getting near the ban I'd seriously advise it. You wont get any award of costs, the free legal aid scheme wont cover it (its road traffic, not criminal) and the attorney general's scheme is a pittance.

padser

hullaballoo wrote:

In order to bring the claim, you would have to begin in the District court, and then it would (probably) go straight to the Supreme Court as they're the only power that can make pronouncements on the constitutionality of things.

Hmm, im clearly spending far far too much time reading your posts hullaballoo (especially considering its coming up to exam time) but from what i remember if its a constitutional challenge it starts in the high court (as that is the first court that can deal with constitutional issues) and that nothing (with the exception of an art 26 reference) can go straight to the supreme court without first going through the high court????

hullaballoo

padser wrote:

Hmm, im clearly spending far far too much time reading your posts hullaballoo (especially considering its coming up to exam time) but from what i remember if its a constitutional challenge it starts in the high court (as that is the first court that can deal with constitutional issues) and that nothing (with the exception of an art 26 reference) can go straight to the supreme court without first going through the high court????

Hence the "(probably)", I wasn't sure myself, but I'd say you're right.

dermot_sheehan

Bond-007 wrote:

Is a citizen entitled to legal aid if he wishes to challenge the constitutionality of a law (Road Traffic act 2004 for example)?

Would such a case need to start in the District courts and proceed by way of appeals to the High court or would it start out in the high court in the first place. I know that the state would have the AG and heavy weight SC's fighting their corner, just wondering would Joe Public be entitled to the same?

Constitutional challenges are heard in the High or Surpeme Court. If your case is in the circuit court they can refer it to the Supreme Court for an advisory opinion, if its in the District Court they can refer it to the High Court.

I'm not aware of the details of the section but does it say "conclusively presumed" or just "presumed". The first section was struck down as unconstitutional in the past referring to a medical certificate issued by a doctor taking blood samples for alcohol levels for suspected drink drivers. It was held to deprive the courts from looking into the matter, and therefore violated separation of powers and the right of the accused to challenge the evidence.

If it's just presumed (i.e. you can challenge the calibration of the gun in court but it's presumed to be correct), then a constitutional challenge would fail in my opinion. There are many legal presumptions that shift the burden of proof to the accused on the balance of probabilities in certain circumstances, for exampled if you are found with more then a certain amount of drugs, it is presumed they are for supply, if you plead insanity, it is presumed that you are sane. These statutory presumptions allow the accuse to challenge the evidence but he bears the burden not the state.

Thirdfox

Above case citation:

Maher v. Attorney General [1973] IR 140

- controversial phrase was “conclusive evidence”.

As regards to locus standi can you not take the case as a bona fide interested party i.e. a driver?

Our man in Havana

gabhain7 wrote:

If it's just presumed (i.e. you can challenge the calibration of the gun in court but it's presumed to be correct), then a constitutional challenge would fail in my opinion. There are many legal presumptions that shift the burden of proof to the accused on the balance of probabilities in certain circumstances, for exampled if you are found with more then a certain amount of drugs, it is presumed they are for supply, if you plead insanity, it is presumed that you are sane. These statutory presumptions allow the accuse to challenge the evidence but he bears the burden not the state.

All very interesting. Fair enough you can challenge, but the Gardai won't provide the evidence needed (calibration cert) so you can build a case in defence. If you pressed them they will say it is presumed to be correct and tough you prove otherwise which is impossible.

Say for instance a Garda accused someone of doing 80km/h in a 50km/h zone. Driver denies this claims not to be speeding. Accused asks Garda to see readout on gun and is refused. Accused then requests proof of calibration and is again refused. The accused now has no way of proving the instrument may be faulty and is effectively denied due process and justice. I can't see this as been in the public interest for Gardai to be accusing people of speeding without being able to stand over their actions and not by hiding behind an act that states we don't have to show you anything.

coolhandluke

popebenny16 wrote:

No, there are certain issues with the act, I have actually been invited by a District Court Judge to challenge it, the problem is that most clients dont have the funds for it, it's a simple equation, if it's your first penalty points and you're not risking ban - why bother? With a client getting near the ban I'd seriously advise it. You wont get any award of costs, the free legal aid scheme wont cover it (its road traffic, not criminal) and the attorney general's scheme is a pittance.

It's always nice to hear that in the "republic",the law applies equally to everyone regardless of means.oh what a great little country we live in !:o

Eru

The Garda using the machine and giving evidence is trained in the apparatus and as such is deemed an expert witness. He/she gives evidence that the machine was correctly calibrated and working correctly and that you were doing the speed suggested.

Having said that, I agree that the machine should print a reciept in the same manner as the intoxilyzer however I dont think we hould have to prove it was calibrated. They are checked and tested by experts and signed off so thats that.

Victor

Bond-007 wrote:

Say for instance a Garda accused someone of doing 80km/h in a 50km/h zone. Driver denies this claims not to be speeding. Accused asks Garda to see readout on gun and is refused. Accused then requests proof of calibration and is again refused.

Then you can present your evidence as "I glanced at the speedometer, just as I saw the Garda car in the distance. I was doing a little under 50 km/h. The garda motioned me to stop and I pulled in behind the garda car. The garda refused to show me the reading on the gun, when asked. When I got the ticket, it stated 80km/h. My moped isn't capable of more than 65km/h unless with a strong breeze to my back and a steep hill. I humbly suggest that the reading and / or the ticket was incorrect and would like to have the gun examined or for calibration certificates to be provided."

That might work.

Our man in Havana

Karlitosway1978 wrote:

The Garda using the machine and giving evidence is trained in the apparatus and as such is deemed an expert witness. He/she gives evidence that the machine was correctly calibrated and working correctly and that you were doing the speed suggested.

Having said that, I agree that the machine should print a reciept in the same manner as the intoxilyzer however I dont think we hould have to prove it was calibrated. They are checked and tested by experts and signed off so thats that.

It shouldn't be a big deal to take the calibration cert to court in case it is asked for in evidence?

Our man in Havana

Victor wrote:

Then you can present your evidence as "I glanced at the speedometer, just as I saw the Garda car in the distance. I was doing a little under 50 km/h. The garda motioned me to stop and I pulled in behind the garda car. The garda refused to show me the reading on the gun, when asked. When I got the ticket, it stated 80km/h. My moped isn't capable of more than 65km/h unless with a strong breeze to my back and a steep hill. I humbly suggest that the reading and / or the ticket was incorrect and would like to have the gun examined or for calibration certificates to be provided."

That might work.

It might work for a honda 50 indeed. Doubt it would work any decent sized car that can exceed 80km/h.

Eru

Bond-007 wrote:

It shouldn't be a big deal to take the calibration cert to court in case it is asked for in evidence?

Who has it? Things like that are signed off by both internal and external parties, we wouldnt have access to the certs on a daily basis.

Jesus, its hard enough getting a new pen and notebook in this job

Sparks

Bond-007 wrote:

Doubt it would work any decent sized car that can exceed 80km/h.

What about cars like the Citroen C4, which is probably the next Golf? Comes with a speed limiter as standard - dial in the speed limit and turn it on and the car won't let you accelerate past the speed limit. Or what if you have cruise control set at a point below the limit?
There are cases where you would have the Garda testifying that the speed gun (whose readout and calibration the defendant can't see) says the defendant was speeding; while the defendant testifies that the speed limiter (whose readout and calibration the court can't see) says that he/she was not speeding.
Now what?

Our man in Havana

As usual the Gardas word would be taken as is and you would be convicted. That's the problem with the law at the moment.

maidhc

Bond-007 wrote:

As usual the Gardas word would be taken as is and you would be convicted. That's the problem with the law at the moment.

I agree, but I think the only real alternative will be for "black" boxes to be fitted in cars. Here the logging bit is simple (pretty much all modern cars have digital speedos, even if the readout is analogue), but you will still have difficulty with time synchronisation. E.g. is the time on the speedcamera the same as the time on your logs...

At the moment I suspect there is a greater chance of a garda telling the truth than a guy trying to get off a driving offence. However it shouln't be too much to expect the gardaí to provide up-to-date calibration certificates.

Eru

Sparks wrote:

What about cars like the Citroen C4, which is probably the next Golf? Comes with a speed limiter as standard - dial in the speed limit and turn it on and the car won't let you accelerate past the speed limit. Or what if you have cruise control set at a point below the limit?
There are cases where you would have the Garda testifying that the speed gun (whose readout and calibration the defendant can't see) says the defendant was speeding; while the defendant testifies that the speed limiter (whose readout and calibration the court can't see) says that he/she was not speeding.
Now what?

Cruise control is not exact and its at your discretion as is the limiter. Who says that you had them set under the limit at the time?

Victor

maidhc wrote:

I agree, but I think the only real alternative will be for "black" boxes to be fitted in cars. Here the logging bit is simple (pretty much all modern cars have digital speedos, even if the readout is analogue), but you will still have difficulty with time synchronisation. E.g. is the time on the speedcamera the same as the time on your logs...

Tie them both to GPS and it shouldn't be a problem.

Sparks

Karlitosway1978 wrote:

Cruise control is not exact and its at your discretion as is the limiter.

Cruise control and the speed limiter and the speedometer in the C4 are all digital and run off the same sensor. If the cruise control does maintain a speed other than that indicated, the driver has no way of knowing whatsoever. I was of the impression that in such a case, the driver isn't the liable party, but Citroen or the mechanic who last serviced and signed off on the car as being roadworthy.

Who says that you had them set under the limit at the time?

My initial reaction is "the same person who says that the Garda isn't lying about what was on the speed gun".

Easygainer

If I were to lodge a constitutional challenge to an area of Road Traffic law, it would be a conviction from a speed camera. They all face the front of the car which discriminates against car drivers as opposed to motorcyclists (who don't have a reg. plate at front). You are not being treated equally and it is disproportionate on the basis that a motorcyclist is 16 times more likely to be killed in a RTA.

Random breath testing would also be unconstitutional. Quite apart from Kingsmill Moore J's speech, what's the difference between stopping any car to check if the driver has been drinking and stopping any pedestrian? Public interest? That argument doesn't stand with me when you have junkies killing each other outside of cars as well as shooting from them at each other... It's just the next step in the nanny state toward stopping everything so Foxrock housewives are happy and it looks like something is being done about road deaths...

/Rant

antoinolachtnai

The issue I see is the way the instrument is used. The Garda on the television ad, for example, never looks at the vehicle whose speed is being measured except in conjunction with the radar gun. This looks to me like an illegal search, an unjustified intrusion. I think tha to act within the law, the Garda has to form a view that the car is travelling over the limit before deploying the radar. What is the practice on this?

Our man in Havana

That is the law in the UK, that a prior opinion of speed is needed. It has been found that measuring the speed of every vehicle regradless was tantamount to a fishing trip and thus declared illegal. In the UK there is usually a video connected to the instrument which records excatly what vehicles were checked. The video also shows the constable setting up the instrument and testing of it. Stills are pulled from the video and these are sent to the accused. These videos are made available to the defence on request. In the UK alot of speeding charges are often dismissed on viewing the videos usually as the video shows the instrument being used incorrectly.

Lplated

Would such a case need to start in the District courts and proceed by way of appeals to the High court or would it start out in the high court in the first place. I know that the state would have the AG and heavy weight SC's fighting their corner, just wondering would Joe Public be entitled to the same?

Another approach would be to take a judicial review case stopping the prosecution of the charge on the basis it was unconstitutional. Wouldn't make the challenge any cheaper.

There is much precedent for no order for costs awarded against a citizen when they lose (constitutional type) claims against the State, on a general 'public interest/public policy' ground, particularly where there was some meritorious argument to begin with.

Our man in Havana

I know that you can get free legal aid for a case stated to the high court by a district court. The problem would be to convince a district court judge to send the case to the high court.

Lplated wrote:

There is much precedent for no order for costs awarded against a citizen when they lose (constitutional type) claims against the State, on a general 'public interest/public policy' ground, particularly where there was some meritorious argument to begin with.

But even so you would have to pay your own costs. I can't think that a barrister would take on such a case for free.

popebenny16

Well, firstly you must be charged or summonsed. That is District Court juristiction. It's forgotten that well over 90% of all cases in Ireland are heard in the District Court.

Although not all judges agree with it you can insist on a Gary Doyle order in these cases. Why? Because with penalty points you can eventually get banned. Then its a case of gathering the information on the speed detection device you are presented with by the Gardai. There is usually a margin of error on each one, but it is small. Also, most speeometers in cars are designed to over-estimate your speed. You might think you're going at 50kph, you may really be doing 48. If the garda speedo says you're doing 55 there's some doubt.

Someone posted above that we've a great republin regarding free legal aid fees. I totaly agree however you will see some action in the media if a Solicitor starts campaigning for it as we're all greedy little feckers anyway.

Eru

A Gary Doyle order would have no bearing on a speed gun and would be of little use in such a case. All you would be getting is a Precis.

Also, have you got an expert witness to testify that your speedometer was correct or over estimating at the time of the offence and who will give evidence of its reading at the time? ITs not realistic to say you were watching your own speed for the whole journey.

Sparks

Also, have you got an expert witness to testify that your speedometer was correct or over estimating at the time of the offence and who will give evidence of its reading at the time? ITs not realistic to say you were watching your own speed for the whole journey.

No it wouldn't be - but the thing is that here you have a speed limiter which ensures the speedometer won't go over a pre-set value. And since you've been driving the car for some time, you are an expert in its use - and if you want to challange that, you have to produce a standard by which someone's expertise in pushing two buttons and reading a number can be judged, and at the same time, someone who's been doing so for months or years would have to be found wanting according to that standard.

popebenny16

A gary doyle order would cover the entirity of the state case, you look for full disclosure of everything, including the make of speed gun, type used (Laser, sonar) ect. Yes you need an expert but the one expert will confrim the position regarding all speedometors as well as tackling the gun. Most important, get the serial number of the actual gun. Get the logs from the station as to who has which gun at the time and ensure that it does or doent match the assigned garda.

This will be great gas when the reserve garda come in.