Speeding loophole: doubt over thousands of cases

mlmcelligott

"THOUSANDS of drivers convicted of speeding over the past six years could have their cases quashed, fines returned and penalty points removed following a legal challenge."

http://www.independent.ie/national-news/speeding-loophole-doubt-over-thousands-of-cases-2259151.html

Has anyone followed up on this and got their penalty points quashed and fine returned?

Our man in Havana

Firstly, this will not affect anyone that paid any fixed penalty notices in relation to these offences. That ship has sailed.

Also I doubt cases could be reopened so long after conviction.

johnnyskeleton

Haddockman wrote: »

Firstly, this will not affect anyone that paid any fixed penalty notices in relation to these offences. That ship has sailed.

Also I doubt cases could be reopened so long after conviction.

Shouldn't think so, in A v. Governor of Arbour Hill supreme court held that if a person engaged with the criminal process and was convicted without raising an issue(in that case the constitutionality of the act), then they were estopped from challenging their conviction subsequently.

Our man in Havana

Would anyone that accepted a fixed penalty be entitled to challenge at this stage?

ratvin

Dr Breda Hayes, solicitor of Hayes Solicitors, Limerick, who brought the judicial review test case in the High Court, said that "Many people have been convicted of a non-existent offence over a prolonged period of time and their convictions were unlawful and in breach of their fundamental human rights". She said that to convict someone of a non-existent offence was a breach of the European Convention on Human Rights and drivers were entitled to seek a remedy and be compensated for being wrongly convicted.

So, if someone paid any fixed penalty notices in relation to this type of offense, and got points added, I don't see how that conviction can stand since there was no offense in the first place. Anyone agree?

And how do you go about seeing if you can get ant points endorsement removed from your license?

MagicSean

Wouldn't the legislation have to be deemed unconstitutional for all previous convictions to be quashed?

Jo King

ratvin wrote: »

So, if someone paid any fixed penalty notices in relation to this type of offense, and got points added, I don't see how that conviction can stand since there was no offense in the first place. Anyone agree?

And how do you go about seeing if you can get ant points endorsement removed from your license?

The offence existed. There was a defence that the person was not guilty of it by reason of the fact that it happened in a particular location. A defendant in a criminal case is asked to plead. In the case of a fixed penalty, paying the fixed penalty means pleading guilty. It was open to anyone who got a fixed penalty notice plead not guilty to raise the defence as done in this case.
having pleaded guilty and taken the rap it is now too late. There may be a possibility that people convicted after a hearing in the District Court can appeal to the Circuit Court and have the conviction overturned.

Bosco boy

It makes me sick to hear "breach of human rights" mentioned. Many of these drivers are a danger on our roads and that is why they got fixed penalty notices. I consider it a breach of human rights when you meet one of these Drivers overtaking on a bend and heading staight for you. It's time the legislators and the attorney generals office gave us decent laws and procedures that can be enforced. It's time also that some judges played their part in road safety and stopped making a mockery of the system.

johnnyskeleton

Bosco boy wrote: »

It's time also that some judges played their part in road safety and stopped making a mockery of the system.

So they should make up the law in order to convict people rather than let the Oireachtas make the law and they enforce it?

old_aussie

k_mac wrote: »

Wouldn't the legislation have to be deemed unconstitutional for all previous convictions to be quashed?

No, just the interpretation of the legislation was incorrect.

shaneybaby

.

MagicSean

old_aussie wrote: »

No, just the interpretation of the legislation was incorrect.

THat would allow for someone to appeal a conviction to a higher court but surely it wouldn'y affect those who have been through the courts already.

Bosco boy

johnnyskeleton wrote: »

So they should make up the law in order to convict people rather than let the Oireachtas make the law and they enforce it?

Why do you think they should do that?????

someday2010

The law is an ass:D

Victor

What is the actual point of dispute?

Tester46

Victor wrote: »

What is the actual point of dispute?

Rather than simply calling the law an ass and having a go at District Court judges, can anyone advance an informed view as to whether this particular judgment has any impact on:

1) cases where persons have been convicted in court under s5?
2) cases where persons have paid the fixed penalty rather than go to court (for a s5 offence)?
3) cases where persons have yet to pay the fine or be summonsed to court?

Our man in Havana

1. Poeople convicted can now appeal and have their convictions quashed and have any fines refunded and points removed.
2. People can get their money back and have points removed.
3. They should seek legal advice.

It appears that S5 has been used as a catch all offence when clearly it should only be used to enforce 50Km/h limits in built up areas.

Tester46

Haddockman wrote: »

1. Poeople convicted can now appeal and have their convictions quashed and have any fines refunded and points removed.
2. People can get their money back and have points removed.
3. They should seek legal advice.

It appears that S5 has been used as a catch all offence when clearly it should only be used to enforce 50Km/h limits in built up areas.

I'm not doubting you, but is that your opinion, or is it based on the actual judgment? I don't mean that as a criticism, just wondering how reliable your opinion is! :D:D

ViP3r

So does this mean that speeding offences outside of urban/built up residential areas are not governed by legislation? Or does it simply mean that in some cases the defendant was prosecuted under the wrong section and the appropriate provision will applied in future??


Essentially...can I break the speed limit without consequence in rural areas?

Our man in Havana

ViP3r wrote: »

So does this mean that speeding offences outside of urban/built up residential areas are not governed by legislation? Or does it simply mean that in some cases the defendant was prosecuted under the wrong section and the appropriate provision will applied in future??

Pretty much that was the case. They have fixed it all now.

ViP3r wrote: »

Essentially...can I break the speed limit without consequence in rural areas?

No. They now have their act together.

Victor

So the prosecution were saying the offence was under Section 5, when it was actually under section 6-9?

Our man in Havana

Correct.

Jo King

Haddockman wrote: »

1. Poeople convicted can now appeal and have their convictions quashed and have any fines refunded and points removed.
2. People can get their money back and have points removed.
3. They should seek legal advice.

It appears that S5 has been used as a catch all offence when clearly it should only be used to enforce 50Km/h limits in built up areas.

If people paid up on a fixed penalty notice, what can they appeal?

Our man in Havana

They can ask for their money back (I know what the answer will be there) or bring an action against the state. The alleged charge on the FPN did not exist.

dermot_sheehan

I'm not sure if a right to restitution arises here.

prima facie payment of money under a mistake of law gives a right to restitution,

in these cases though the money was paid so that under section 103(9)(c) of the road traffic act 1961 would kick in barring a prosecution

section 103(9)(c)

a prosecution in respect of the alleged offence to which the notice relates shall not be instituted during the periods specified in the notice or, if a payment so specified is made during the period so specified accompanied by the notice, duly completed, in relation to the payment, at all,

The fact that there was no offence committed as alleged does not give a right to restitution in my view. The motorist paid so that this section of the road traffic act would bar a prosecution. The fact that the prosecution it would have barred could not have resulted in a conviction is irrelevant.

Our man in Havana

It is very interesting. I don't care one way or the other. I wonder will someone bring a test case to see?

Jo King

Haddockman wrote: »

They can ask for their money back (I know what the answer will be there) or bring an action against the state. The alleged charge on the FPN did not exist.

The charge did exist. It was open to anyone to go to court and challenge it. they chose not to do so. By paying the fixed penalty they waived their rights.

Our man in Havana

I reckon someone will challenge it.

I know of 1 case where a FPN were paid in a case where the speed limit did not legally exist due to council incompetence. The Gardaí refunded the money and wiped the points.

Why would they refund if they had no legal obligation to do so?

L1011

Haddockman wrote: »

I reckon someone will challenge it.

I know of 1 case where a FPN were paid in a case where the speed limit did not legally exist due to council incompetence. The Gardaí refunded the money and wiped the points.

Why would they refund if they had no legal obligation to do so?

I can make that 2 cases, unless you know me, of course.

Victor

Actually, I had a look, the offence is sction 47 of the 1961 act as amended by the 2004 act (section 10).

Is the prosecution entitled to vary the charge at the start of the hearing? Or beforehand?

Haddockman wrote: »

council incompetence.

No wai! :pac: