Limerick barrister seeks landmark speeding judgement

Comhrá

A LIMERICK barrister is leading an appeal to challenge the way in which speeding fines can be appealed.

Desmond Hayes is representing parties taking a High Court constitutional challenge which, he says, could change the means to appeal against fixed charges for alleged speeding offences....

https://www.limerickleader.ie/news/home/630782/limerick-barrister-seeks-landmark-speeding-judgement.html

donvito99

Mr Hayes believes the lack of opportunity to challenge the evidence of a garda, other than in court, is unconstitutional. He believes section 37 of the Road Traffic Act 2010 does not afford you the opportunity to challenge the evidence of a garda other than in court.

I'm not sure any other means of challenging a fixed penalty notice would be constitutional or practical either. You're better off rocking up to the district court and appealing in any case, judges are more than happy to shoot down FCPNs.

In any case it's nice to see a barrister pushing for less circumstances in which you need to pay a lawyer.

_Kaiser_

It's long overdue really. The other thing that needs to go is the penalty increasing if you lose, for daring to challenge it in the first place. If you lose fair enough, but you should only get the original points.

Interesting development though - that and the recent comments by a judge that GoSafe are supposed to be clearly visible, not trying to catch people out. Add to that the tactic of AGS cars sitting up on on-ramps nabbing cars below them and it could end both practises.

Hurrache

Technically speaking, and it's how it was laid out when introduced, is that the penalty is not increased if you lose the appeal, it's that it's reduced if accepted. I imagine that'll be the states arguments.

I don't see anything wrong with how Gardai monitor for speeding offences, how else are they supposed to do it?

And that judge and his comments on GoSafe, he was a bit of a gob****e and can't see that standing up in the long term.

donvito99

Hurrache wrote: »

I don't see anything wrong with how Gardai monitor for speeding offences, how else are they supposed to do it?

This is exactly it. The purpose of strict liability/the FCPN system is to avoid every Guard having to spend every other day in court giving evidence of the last certification of his speeding gun. Get rid of the increased penalty for a failed appeal and suddenly the system is less effective.

TheChizler

Hurrache wrote: »

Technically speaking, and it's how it was laid out when introduced, is that the penalty is not increased if you lose the appeal, it's that it's reduced if accepted. I imagine that'll be the states arguments.

I don't think it's likely but it would be hilarious is the outcome of this was that the reduced penalty was illegal and the court one became default.

GNWoodd

donvito99 wrote: »

This is exactly it. The purpose of strict liability/the FCPN system is to avoid every Guard having to spend every other day in court giving evidence of the last certification of his speeding gun. Get rid of the increased penalty for a failed appeal and suddenly the system is less effective.

By less effective you mean that more cases would be challenged ?
If the state initiates a case against a motorist the least that motorist should be able to do is to see the evidence without having having to engage a solicitor .
The truth should matter at the end of the day.

Cerco

donvito99 wrote: »

I'm not sure any other means of challenging a fixed penalty notice would be constitutional or practical either. You're better off rocking up to the district court and appealing in any case, judges are more than happy to shoot down FCPNs.

In any case it's nice to see a barrister pushing for less circumstances in which you need to pay a lawyer.

There is nothing benevolent here on the part of the barrister IMHO. He has little to loose as it would be a solicitor who would represent a client, if represented, in the district court on a minor traffic offence.

The barrister will, on the other hand, gain publicity and perhaps kudos by challenging the legislation.

Del2005

GNWoodd wrote: »

By less effective you mean that more cases would be challenged ?
If the state initiates a case against a motorist the least that motorist should be able to do is to see the evidence without having having to engage a solicitor .
The truth should matter at the end of the day.

There's no need for a solicitor for most motoring offences.
If you get a ticket for speeding and can prove you weren't why would you need a solicitor?

If you are looking for a loophole then you will need a solicitor regardless.

banie01

Del2005 wrote: »

There's no need for a solicitor for most motoring offences.
If you get a ticket for speeding and can prove you weren't why would you need a solicitor?

If you are looking for a loophole then you will need a solicitor regardless.

Just on the bolded.
The issue is not and should never be an ability to "prove you weren't" it is incumbent on the state to prove you broke the law.
It is not, nor should it ever be a requirement for one to present exculpatory evidence, indeed if such evidence exists it should have been assessed by the state before they press charges.

The right to the presumption of innocence is all too easily forgotten or dismissed completely when it comes to strict liability offences and it is at odds with fair procedure and the presumption of innocence.

Del2005

banie01 wrote: »

Just on the bolded.
The issue is not and should never be an ability to "prove you weren't" it is incumbent on the state to prove you broke the law.
It is not, nor should it ever be a requirement for one to present exculpatory evidence, indeed if such evidence exists it should have been assessed by the state before they press charges.

The right to the presumption of innocence is all too easily forgotten or dismissed completely when it comes to strict liability offences and it is at odds with fair procedure and the presumption of innocence.

Driving is a privilege not a right, UK motorists challenged the UK version of the FCPN in the EU courts and lost.

The assumption of innocences is only for criminal offences, motoring offences aren't criminal. Motoring offences are judged on the balance of probability, like civil cases. The states proof that you were speeding, or any other motoring offences, is the Garda's testimony you have the opportunity to counter this in court.

banie01

Del2005 wrote: »

Driving is a privilege not a right, UK motorists challenged the UK version of the FCPN in the EU courts and lost.

The assumption of innocences is only for criminal offences, motoring offences aren't criminal. Motoring offences are judged on the balance of probability, like civil cases. The states proof that you were speeding, or any other motoring offences, is the Garda's testimony you have the opportunity to counter this in court.

Where the imposition of a penalty is carried out in a procedural manner that can result in serious consequence to the approved, be it their insurance premia rising, their job being dependant upon driving or even living in a rural area not served by public transport, the accumulation of penalty points without recourse to access to fair procedure and natural justice could well be at odds with the constitution IMO.

The criminal aspect of the offence isn't the issue, the actual right to fair procedure and presumption of innocence is.

That the legislation is designed to skirt driving offences below dangerous driving is part and parcel of a deliberate method of avoiding an accuser's recourse to fair procedure.

The right/privilege argument is moot tbh.
Yes, driving is a privilege but the possible revocation or limitation of that privilege on the basis of a charge that is on a strict liability basis and is quite often indefensible without accruing risk of being dealt a greater penalty?
Is inherently unfair.

GNWoodd

banie01 wrote: »

Where the imposition of a penalty is carried out in a procedural manner that can result in serious consequence to the approved, be it their insurance premia rising, their job being dependant upon driving or even living in a rural area not served by public transport, the accumulation of penalty points without recourse to access to fair procedure and natural justice could well be at odds with the constitution IMO.

The criminal aspect of the offence isn't the issue, the actual right to fair procedure and presumption of innocence is.

That the legislation is designed to skirt driving offences below dangerous driving is part and parcel of a deliberate method of avoiding an accuser's recourse to fair procedure.

The right/privilege argument is moot tbh.
Yes, driving is a privilege but the possible revocation or limitation of that privilege on the basis of a charge that is on a strict liability basis and is quite often indefensible without accruing risk of being dealt a greater penalty?
Is inherently unfair.

The imposition of a penalty that results in disqualification of a driver living in a rural area is something that needs to be reviewed .
Does anybody actually care what happens to these people and those who are dependent on them ?
This country should have learnt from the zealotry dished out by those in authority in the past to allow it to re occur .

ohnonotgmail

banie01 wrote: »

Just on the bolded.
The issue is not and should never be an ability to "prove you weren't" it is incumbent on the state to prove you broke the law.
It is not, nor should it ever be a requirement for one to present exculpatory evidence, indeed if such evidence exists it should have been assessed by the state before they press charges.

The right to the presumption of innocence is all too easily forgotten or dismissed completely when it comes to strict liability offences and it is at odds with fair procedure and the presumption of innocence.

and the state will do that using the evidence captured by the speed detection device. it is up to the defendant to then challenge that evidence. you don't have to prove you were not speeding.

martingriff

GNWoodd wrote: »

By less effective you mean that more cases would be challenged ?
If the state initiates a case against a motorist the least that motorist should be able to do is to see the evidence without having having to engage a solicitor .
The truth should matter at the end of the day.

Okay you see the lazer gun then what

GNWoodd

martingriff wrote: »

Okay you see the lazer gun then what

You should be able to see all the evidence including that which might exonerate you and not just be in receipt of a document issued by a computer . As if the computer needed no human intervention and issued paperwork on its own.
There should be enshrined in law an obligation to disclose all records being held by the state where the state is about to impose a sanction particularly where that results in a disqualification .
The motorist should not have to request this data . If the case against you is solid then there should be no problem for those initiating the process.

Witcher

GNWoodd trying to get road traffic offenders off the hook, what a suprise.

GNWoodd

GNWoodd wrote: »

The imposition of a penalty that results in disqualification of a driver living in a rural area is something that needs to be reviewed .
Does anybody actually care what happens to these people and those who are dependent on them ?
This country should have learnt from the zealotry dished out by those in authority in the past to allow it to re occur .

Glad to see the disqualification when it comes so. If you depend on having your license you’d best mind yourself.

Del2005

Del2005 wrote: »

The assumption of innocences is only for criminal offences, motoring offences aren't criminal.

Again with this? Why do you people keep repeating this?

Ireland is common law. Common law has only civil and Criminal law. No middle ground like Napoleonic law that you see in Spain and France.

Traffic offences fall within the remit of Criminal law. Your ticket will be before a judge in a Criminal court with other criminal offences as a result of a summons. Other traffic offences will result in a charge sheet which does not exist outside Criminal law. You are found guilty and convicted each again only happens in Criminal law. Neither happens in civil law at all. You are issued penalties including custodial sentences. When the judge requests your previous convictions, it includes traffic.

Vetting specifically excludes traffic offences in most parts because of this fact and they aren't considered relevant outside of more serious offences like dangerous driving, etc.

https://www.citizensinformation.ie/en/justice/criminal_law/criminal_offences/

https://vetting.garda.ie/VettingProcedure/WhatIsDisclosed

"any motorist in paying a fine and accepting penalty points through the fixed charge system, avoids a criminal conviction and therefore does not have a criminal record." (https://www.odwyersolicitors.ie/garda-error-on-traffic-convictions/)

"Being involved in a road traffic offence is a serious crime" (https://www.banesolicitors.ie/road-traffic-offences--criminal-law)

"The majority of people in Ireland who come into contact with the Gardai and the criminal justice system do so through prosecutions under road traffic legislation" (https://kodlyons.ie/road-traffic/)

banie01

ohnonotgmail wrote: »

and the state will do that using the evidence captured by the speed detection device. it is up to the defendant to then challenge that evidence. you don't have to prove you were not speeding.

The state is seeking to impose a penalty prior to the review of that evidence or any mitigation of fact.

Being held as guilty of an offence, before any evidence, defence or mitigation is heard is repugnant to fair procedure, natural justice and the Constitution IMO.

Granted, given the volume of speeding offences detected, it is certainly understandable that a way to deal with these outside of the district court system was sought.
Prosecuting each instance individually is a huge burden and a use of resources that could be directed towards more impactful uses.

I don't agree however, that administrative convenience trumps one's right to fair procedure.
The incentivisation of accepting the charge and paying the fine, versus the jeopardy inherent in attending court to defend the charge is grossly unfair.
A person has a constitutional right to fair procedure, and there are other constitutional issues at play too IMO, such as the exercise of justice in public.

Our criminal courts are adverse to a one size fits all approach and the independence of the judiciary is quite rightly, well protected.
The move towards "administrative" style justice with no actual scope for defence or mitigation save at risk of higher penalty?
Is clearly grossly unfair.

ohnonotgmail

banie01 wrote: »

The state is seeking to impose a penalty prior to the review of that evidence or any mitigation of fact.

Being held as guilty of an offence, before any evidence, defence or mitigation is heard is repugnant to fair procedure, natural justice and the Constitution IMO.

Granted, given the volume of speeding offences detected, it is certainly understandable that a way to deal with these outside of the district court system was sought.
Prosecuting each instance individually is a huge burden and a use of resources that could be directed towards more impactful uses.

I don't agree however, that administrative convenience trumps one's right to fair procedure.
The incentivisation of accepting the charge and paying the fine, versus the jeopardy inherent in attending court to defend the charge is grossly unfair.
A person has a constitutional right to fair procedure, and there are other constitutional issues at play too IMO, such as the exercise of justice in public.

Our criminal courts are adverse to a one size fits all approach and the independence of the judiciary is quite rightly, well protected.
The move towards "administrative" style justice with no actual scope for defence or mitigation save at risk of higher penalty?
Is clearly grossly unfair.

if you pay the FCPN you are not guilty of an offence. you are only found guilty after a criminal trial where both side can present evidence.

Leroy42

GNWoodd wrote: »

The imposition of a penalty that results in disqualification of a driver living in a rural area is something that needs to be reviewed .
Does anybody actually care what happens to these people and those who are dependent on them ?
This country should have learnt from the zealotry dished out by those in authority in the past to allow it to re occur .

Shouldn't that start with the person doing the speeding? This isn't something that just happens, it is a repeated offence that leads to disqualification and as such the person has already been given warnings.

Should we let everyone that 'needs' to drive off? So travelling salesperson, taxi drivers, people who drive to work, people with kids that bring them to school & Sports?

JC01

Del2005 wrote: »

Driving is a privilege not a right, UK motorists challenged the UK version of the FCPN in the EU courts and lost.

The assumption of innocences is only for criminal offences, motoring offences aren't criminal. Motoring offences are judged on the balance of probability, like civil cases. The states proof that you were speeding, or any other motoring offences, is the Garda's testimony you have the opportunity to counter this in court.

Why is driving a privilege? We all hear this constant argument about people having a “right” to housing so what is the criteria to decide if something is one or the other?

From a societal point of view driving is just as important as housing to a large swathe of the population of this country so I don’t understand why it’s held up as something your lucky to be allowed to do.

Leroy42

banie01 wrote: »

The state is seeking to impose a penalty prior to the review of that evidence or any mitigation of fact.

Being held as guilty of an offence, before any evidence, defence or mitigation is heard is repugnant to fair procedure, natural justice and the Constitution IMO.

Granted, given the volume of speeding offences detected, it is certainly understandable that a way to deal with these outside of the district court system was sought.
Prosecuting each instance individually is a huge burden and a use of resources that could be directed towards more impactful uses.

I don't agree however, that administrative convenience trumps one's right to fair procedure.
The incentivisation of accepting the charge and paying the fine, versus the jeopardy inherent in attending court to defend the charge is grossly unfair.
A person has a constitutional right to fair procedure, and there are other constitutional issues at play too IMO, such as the exercise of justice in public.

Our criminal courts are adverse to a one size fits all approach and the independence of the judiciary is quite rightly, well protected.
The move towards "administrative" style justice with no actual scope for defence or mitigation save at risk of higher penalty?
Is clearly grossly unfair.

But you are allowed to challenge it. People are charged with offences all the time and they either admit to it or take to court to challenge it.

The evidence is that the speeding camera caught your car driving on a certain road above a certain speed. That is notified to the owner of the said car who can write back to claim they were not the driver. As the car is in their name, and thus their responsibility, it then falls on them to prove they were not driving otherwise the case continues on the basis of their responsibility.

At no point are they being denied justice. That they are being given a reduced sentence for accepting guilt (like a plea bargain) is common practice.

ohnonotgmail

JC01 wrote: »

Why is driving a privilege? We all hear this constant argument about people having a “right” to housing so what is the criteria to decide if something is one or the other?

From a societal point of view driving is just as important as housing to a large swathe of the population of this country so I don’t understand why it’s held up as something your lucky to be allowed to do.

so assuming it is a right, that right also comes with responsibilities. those responsibilities include obeying the road traffic laws. if you break those laws that "right" can be taken away. so not really a right then.

Leroy42

JC01 wrote: »

Why is driving a privilege? We all hear this constant argument about people having a “right” to housing so what is the criteria to decide if something is one or the other?

From a societal point of view driving is just as important as housing to a large swathe of the population of this country so I don’t understand why it’s held up as something your lucky to be allowed to do.

Something being important doesn't make it a right.

You aren't lucky to do it, everyone (save those medically unfit) starts off with the ability to drive, legally. With that some certain T&C's, and like with the rest of society the repeating breaking of those T&C's carry penalties. WIth can include the removal of their ability to drive, as it is seen that that is safer to the wider community.

JC01

ohnonotgmail wrote: »

so assuming it is a right, that right also comes with responsibilities. those responsibilities include obeying the road traffic laws. if you break those laws that "right" can be taken away. so not really a right then.

I didn’t say it was a right I’m just challenging the common line that “it’s a privilege, not a right”.

And secondly what other “right” comes with responsibilities? I’ve a right to free speech in this country. I can go spouting any sort of dangerous nonsense and that doesn’t mean my rights can be taken away so again why is driving held in a different view?

I’m not saying the roads should be a free for all I’m just highlighting the major issues I have with people rolling out these RSA catch phrases and shutting down any challenge to the status quo we have regarding traffic laws and the enforcement of them.

JC01

Leroy42 wrote: »

Something being important doesn't make it a right.

You aren't lucky to do it, everyone (save those medically unfit) starts off with the ability to drive, legally. With that some certain T&C's, and like with the rest of society the repeating breaking of those T&C's carry penalties. WIth can include the removal of their ability to drive, as it is seen that that is safer to the wider community.

Can’t multi quote on the phone but basically my other response answers this post too.

I’m not calling driving a right, I’m calling out people who pull out the “it’s a privilege not a right” line rather than actually debating the underlying argument.

ohnonotgmail

JC01 wrote: »

I didn’t say it was a right I’m just challenging the common line that “it’s a privilege, not a right”.

And secondly what other “right” comes with responsibilities? I’ve a right to free speech in this country. I can go spouting any sort of dangerous nonsense and that doesn’t mean my rights can be taken away so again why is driving held in a different view?

I’m not saying the roads should be a free for all I’m just highlighting the major issues I have with people rolling out these RSA catch phrases and shutting down any challenge to the status quo we have regarding traffic laws and the enforcement of them.

That was my point. It is not a right. You have no right to drive a car.

banie01

Leroy42 wrote: »

But you are allowed to challenge it. People are charged with offences all the time and they either admit to it or take to court to challenge it.

The evidence is that the speeding camera caught your car driving on a certain road above a certain speed. That is notified to the owner of the said car who can write back to claim they were not the driver. As the car is in their name, and thus their responsibility, it then falls on them to prove they were not driving otherwise the case continues on the basis of their responsibility.

At no point are they being denied justice. That they are being given a reduced sentence for accepting guilt (like a plea bargain) is common practice.

But they are only allowed to challenge it at risk of higher peril.
The challenge itself and its success are very much at the mercy of the court rather than actual procedural norms.

Comparing it to entering a guilty plea at court is IMO at least quite a narrow view and comparison.
Upon entering a not guilty verdict, you will already have been served with the totality of the state's evidence.
You will also have discovery of same and the ability to plan a strategy of defence and cross examination.

Evidence other than your license plate and time and date.
There are myriad defences and mitigations available that are immediately excluded from use by the implicit threat of "accept and pay or the penalty increases".

Even going to court and pleading guilty, well let's take that example.
A judge may still accept a guilty verdict as mitigation and direct a donation to the court poor box, the probation act or indeed strike out still at that point.
A judge may also decide that the circumstances allow for no mitigation even with the guilty plea.

By having a system that forces a guilty plea upon the accused?
Well apart from convenience for the FCPN office, we are railroading the accused into accepting guilt only because of the peril associated with challenge.

It also doesn't really address the behaviours that led to the accuseds alleged speeding.
Steps to address that via court mandated driver training and or restorative justice programmes are a better option IMO.

Box ticking and immediate assent to punishment issued solely for convenience sake have no place in the actual implementation of justice.

ohnonotgmail

banie01 wrote: »

But they are only allowed to challenge it at risk of higher peril.
The challenge itself and its success are very much at the mercy of the court rather than actual procedural norms.

Comparing it to entering a guilty plea at court is IMO at least quite a narrow view and comparison.
Upon entering a not guilty verdict, you will already have been served with the totality of the state's evidence.
You will also have discovery of same and the ability to plan a strategy of defence and cross examination.

Evidence other than your license plate and time and date.
There are myriad defences and mitigations available that are immediately excluded from use by the implicit threat of "accept and pay or the penalty increases".

Even going to court and pleading guilty, well let's take that example.
A judge may still accept a guilty verdict as mitigation and direct a donation to the court poor box, the probation act or indeed strike out still at that point.
A judge may also decide that the circumstances allow for no mitigation even with the guilty plea.

By having a system that forces a guilty plea upon the accused?
Well apart from convenience for the FCPN office, we are railroading the accused into accepting guilt only because of the peril associated with challenge.

It also doesn't really address the behaviours that led to the accuseds alleged speeding.
Steps to address that via court mandated driver training and or restorative justice programmes are a better option IMO.

Box ticking and immediate assent to punishment issued solely for convenience sake have no place in the actual implementation of justice.

you receive a discount for admitting guilt at the FCPN stage.

and as for this nonense

The challenge itself and its success are very much at the mercy of the court rather than actual procedural norms.

going to trial IS a procedural norm. that is the procedure for criminal offences. An FCPN is a way to shortcut that procedure and receive a lower penalty.


and what sort of idiot would go to court for a FCPN and then plead guilty? the penalty is proscribed. if you are found guilty in court you will receive the higher penalty. no mitigation.

It also doesn't really address the behaviours that led to the accuseds alleged speeding.

if receiving a fine and points does not change your behaviour then driving is not for you.