Conviction 'set aside', but why?

Scotty #

A person (not me) is convicted for a traffic offence and gets a heavy fine and ban (didn't show up in court).

They then decide to appeal and after lodging the appeal (and having a long friendly chat with the judge), get a letter from the Court Clerk saying the judge later instructed them to write to say the initial conviction has been set aside and a new hearing would be held.

Why would a judge do this instead of just hearing an appeal?

eagle_&_bear

Scotty # wrote: »

A person (not me) is convicted for a traffic offence and gets a heavy fine and ban (didn't show up in court).

They then decide to appeal and after lodging the appeal (and having a long friendly chat with the judge), get a letter from the Court Clerk saying the judge later instructed them to write to say the initial conviction has been set aside and a new hearing would be held.

Why would a judge do this instead of just hearing an appeal?

on the face of it, it seems that there is something a-rye with the scenario.

The first part involving the fine and ban would seem right - there'd be an added slap on the wrist for failing to turn up. makes sense.

lodging the appeal is fine too: you can appeal severity or appeal de novo and have a complete re-hearing. thats fine too.

It's the 'long friendly chat' with the judge that appears suspect. I wonder however, where this 'chat' occured? was it in open court or in private? I would have to say that if a valid reason was put to the court (aka the judge) as to why the person did not appear ie went to wrong court, family issue,or something significant, then the judge that makes an order can, at the same level, remove that order, alter that order or rescind the order. this is perfectly fine too. but in order for the judge to do this, something significant would have to be put before the court. it's not as uncommon as you might think. and it does happen particularly in terms of bench warrants where the accused turns up late and that order is vacated etc.

As for the clerk, he/she would write up the order in the beginning, so it'd make sense that he/she would make the relevant corrections. makes sense here too.

As to why would the judge rescind his/her initial order as opposed to let the matter go on appeal: this very much depends on what was said or put to the Judge at this alleged meeting. There are certain legal issues which could be put to the court, maybe as to jurisdiction (especially if the judge made an order which was ultra vires or maybe bias or something significant) and these would all be very valid reasons for recalling the initial order, staying the appeal and re-trying the matter at district court level. If it went on appeal in relation to issues mentioned above, the judge would be wrong and it'd be bad if he/she didnt correct such a blatant error.

The above is all possible. I'd rule out anything underhanded as the matter was remitted to the district court for another hearing so the person will still have to defend themselves again. If the case was struck-out then an alternative train of thought might prevail.

Jo King

Scotty # wrote: »

A person (not me) is convicted for a traffic offence and gets a heavy fine and ban (didn't show up in court).

They then decide to appeal and after lodging the appeal (and having a long friendly chat with the judge), get a letter from the Court Clerk saying the judge later instructed them to write to say the initial conviction has been set aside and a new hearing would be held.

Why would a judge do this instead of just hearing an appeal?

There is provision in the District Court rules for the set aside of a conviction if a person was unaware of the initial hearing. Most likely the person thought they were appealing to a higher court, but after hearing the story about how th hearing was missed, the judge used his discretion to set aside the initial conviction and begin the matter afresh.

Scotty #

Thanks both for your views.

I wonder however, where this 'chat' occured? was it in open court or in private? I would have to say that if a valid reason was put to the court (aka the judge) as to why the person did not appear ie went to wrong court, family issue,or something significant

As I understand it he was there to apply for an extension to appeal. Then the judge asked if they wanted to lodge the appeal there and then and said 'come on up and I'll sign it' or something ( I wasn't there). Then the judge asked why the court date was missed and hence the 'chat' started. There are family issues (health) and severe finance issues (the offence was no insurance because instalments were missed and insurance company cancelled policy) but AFAIK there was no particularly urgent reason why the court date was missed in the first place. He says he forgot, but I don't buy that myself and I don't know what he actually told the judge the reason was.

The penalty the first time round was €4000 and 2 year ban which even the garda that stopped him was flabbergasted at and said it was most severe.

Is there any chance they could walk away with a caution or something (no car - no job - kids to school etc) or does driving with no insurance always end in a conviction?

eagle_&_bear

Scotty # wrote: »

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Is there any chance they could walk away with a caution or something (no car - no job - kids to school etc) or does driving with no insurance always end in a conviction?

The legislation which governs the offence does not allow for a caution.

it stipulates financial fines, a ban and/or imprisonment for repeated offences so the judge would be limited to what the legislation allows for

Reloc8

On a first time offence driving without insurance has a potential one year ban which does not have to be imposed at the judges discretion. Also, S. 1(1) of the Probation of Offenders Act 1908 can be applied so as not to impose a conviction...i.e. give a caution...a fine may nonetheless issue....i.e the legislation governing this situation does allow for a caution.

behan29

if the insurance company have made errors etc, i would contact the finanical ombundsman, i know of a case that is very similar to this case and the man in question didnt get put off the road, and by all accounts he had multiple convictions etc etc.

Jo King

Scotty # wrote: »

Thanks both for your views.


Is there any chance they could walk away with a caution or something (no car - no job - kids to school etc) or does driving with no insurance always end in a conviction?

There is a chance that if properly advised legally he could get a dismissal or a small fine and retain his licence. If he got the same judge at the hearing he would have a sporting chance.