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Speeding Fine Question

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    #32
    GM228
    Registered Users Posts: 8,925 ✭✭✭GM228


    TPMP wrote: »
    So it would appear that this may have been unconstitutional and penalty points may be wiped as a result. I'm delighted to see this being questioned before the courts because what happened to us and many others was ridiculous.

    Thousands of penalty points could be wiped out if High Court challenge over legislation succeeds https://jrnl.ie/4749723

    Surprisingly has been held to be unconstitutional, will wait to read the judgement when released at the end of the month and the reasoning, but I'd expect an appeal to the Supreme Court by the state.

    https://www.google.com/amp/s/amp.irishexaminer.com/breakingnews/ireland/judge-delays-final-fixed-charge-notice-judgment-so-state-has-time-to-appeal-or-amend-legislation-955782.html

    Note what what Ms Justice Úna Ní Raifeartaigh stated in relation to the Kinsella and Brown cases I mentioned no doubt:-
    She considered this could not be the case and respectfully disagreed with previous High Court judgments on the issue


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    #33
    GM228
    Registered Users Posts: 8,925 ✭✭✭GM228


    Judgement is now available:-

    https://www.bailii.org/ie/cases/IEHC/2019/2019_IEHC_715.html

    As I suspected it was the Kinsella and Brown cases she was referring to.

    No doubt an appeal to the SC is on the cards or legislative changes as suggested by the court, I suspect an appeal will be the preference.

    A critical issue raised seems to be that the courts previously held "served" was satisfied only with proof of postage when the defence of non receipt was raised and received was irrelevant, the court held that if someone raises the defense of not receiving the initial FCPN then the prosecutor should have to prove both points, proof of postage is not enough, I wonder if the ruling which has essentially held that served means posted and received will have wider ramifications, for example in relation to a summons?


    GM228 wrote: »
    hullaballoo wrote: »
    I'm pretty sure I said this would happen.

    Provided only that the bits of that article behind the paywall say what I think they ought to say.
    You did indeed when we discussed it previously in relation to fair procedures, the judgement will be interesting to read, I believe it's a joined case and I'm sure we can expect an appeal to the SC.

    Also discussed in this thread:-
    https://www.boards.ie/vbulletin/showthread.php?t=2057811614
    Pulled from the other thread

    Indeed hullaballoo, however whilst it has been deemed unconstitutional, it is not for the reasons we expected, I think we expected it was due to fair procedures and the presumption of receipt created, it was not, rather it is because of the contradictory nature of the provisions of S44 with S35 of the Act meaning an unfair trial arises which is contrary to Article 38.1:-
    This creates the conundrum referred to earlier in this judgment; namely that, on the one hand, s.35(2) (combined with the Norgro line of authority) tells the judge to acquit/dismiss if the s.35 fixed charge notice was not served (i.e. posted by the Garda and received by the accused person)because a statutory precondition has not been complied with, while, on the other hand,s.44(10) tells the District Judge to convict even if the s.35 fixed charge notice was not served (i.e. posted by the Garda and received by the accused person) because failure to serve is not a defence. My view is that this inherent contradiction between s.44(10) and s.35(2) means that a trial conducted while these provisions are simultaneously in force cannot be a fair trial within the meaning of Article 38.1 of the Constitution.

    The law must be reasonably certain and forseeable, that does not happen because of the new S44:-
    Here, one provision sign posts an acquittal/dismiss on the non-fulfilment of a particular condition, while another provision signposts a conviction upon the non-fulfilment of the same condition. It seems to be that this is contradictory and incoherent; the Oireachtas must decide whether or not it wants the service of a fixed charge notice to be linked with the prosecution or not; it cannot have its cake and eat it too.


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