High Court of Ireland Decisions

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 THE HIGH COURT

[2025[ IEHC 237

[Record No. 2024/1446SS]

[DISTRICT COURT CASE NO. 2022/201013

 

IN THE MATTER OF SECTION 52 OF THE COURTS

(SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECTIONS

(AT THE SUIT OF SUPERINTENDENT SEÁN A.J. O'RIORDAN)

PROSECUTOR

AND

 

EDEL O'BRIEN

DEFENDANT

 

JUDGMENT of Ms Justice Miriam O'Regan, delivered on 23 April 2025.

Issues

1.                  The within matter comes before the High Court by way of a consultative case stated of 24 September 2024 by Judge Miriam Walsh, a Judge of the District Court, under s.52(1) of the 1961 Act above, in respect of a matter which came before the District Court on 13 March 2024 and again on 26 June 2024 at Nenagh District Court. The defendant was before the Court on foot of a summons which was issued on 27 November 2022 returnable to Nenagh District Court on 13 March 2024. The summons alleged that the defendant on 7 September 2022 at M7 Ballinahinch (westbound) Birdhill, Tipperary drove a mechanically propelled vehicle registration number 202 D 4249 at a speed which exceeded the motorway speed limit of 120km/h contrary to s.47 of the Road Traffic Act 1961 as amended. On 16 September 2022 the defendant was furnished with a fixed charge notice ("FCN") in which it is alleged that the defendant was "driving at a speed of 131km/h exceeded motorway speed limit 120km/h contrary to s.47" involving the vehicle above on 7 September 2022 at 21:40 at M7 Ballinahinch westbound, Birdhill, Tipperary.

Case Stated

2.                  In the case stated the District Judge set out various evidence proved or admitted before the District Court, being, in brief: -

(a) on 7 September 2022 the defendant's speed averaged 131km/h between two fixed camera positions;

(b) a fixed charge notice of 16 September 2022 issued and was served on the defendant;

(c) the content of the summons, as above is set out;

(d) on 23 September 2022 the defendant contacted An Garda Síochána and was advised that she had exceeded the "average" speed;

(e) on 18 October 2022 the defendant made further contact with An Garda Síochána stating that she was not happy with the FCN as it did not refer to the "average" speed;

(f) as the defendant elected not to pay the fixed charge she was issued with a summons on 27 November 2023 together with a s.44 notice;

(g) the defendant acknowledged that she did not pay that notice.

When the matter came before the District Court on 13 March 2024 the defendant pleaded guilty and accepted that she had been speeding in excess of the average speed but raised an issue in respect of the FCN in that it did not refer to "average".

Based on the guilty plea the defendant was convicted and a fine was imposed of €250, however, the judge subsequently vacated her order and suggested the defendant seek legal advice. A request was made of both parties to furnish written legal submissions with the matter being adjourned until 27 June 2024.

3.                  A summary of the defendant's position was set out by the District Judge to the effect that the FCN materially misstated the particulars of the actual speeding alleged and the nature and location of the offence were misleading and likely to cause prejudice to the defendant in deciding whether or not to pay the charge.  It was submitted the fine would have been paid if the FCN actually set out and particularised her alleged speeding offence. It is said that only when the defendant contacted An Garda Síochána on 23 September 2022 was she advised that 131km/h was an average speed over a 9km distance. It was asserted that based on the need to seek clarification the argument that the original FCN was materially and fatally defective has been proven. It was argued that failure to reference "average speed" cannot be regarded as minor or trivial permitting a trial judge to conclude that the defendant was not materially mislead as to the nature of the offence and the location thereof. It is said the defendant might have contested the charges in court only to discover at trial that in fact the prosecution were alleging a different offence. Furthermore, if the defendant was to avail of the FCN she would be obliged to falsely declare and acknowledge that she had driven her vehicle at a speed of 131km/h which it is asserted was not the substance of the accusation. There is no good reason or justification for putting the defendant in such a position.

4.                  The prosecution submitted that there is no impediment to the District Court proceedings to convict the defendant, with the FCN being part of a statutory process which allows a person to accept their conduct and avoid a District Court prosecution and conviction, which opportunity was not taken by the defendant who now seeks to avoid a conviction owing to the absence of the word "average" in the FCN notwithstanding that there is no requirement in the legislation to incorporate the word "average". It is said that in her contact with An Garda Síochána the defendant was well acquainted with what was alleged. The matter should be looked at through the prism of the Supreme Court judgment of DPP v Avadendei [2018] 3 IR 215 and s.12 of the Interpretation Act 2005. It is argued that once the matter came before the District Court the court's jurisdiction is based on the charges set out in the summons and if there was a variation or defect between the complaint and the evidence adduced in support thereof such variation or defect should be amended in accordance with the established caselaw concerning District Court Rule Order 38(1) and (2).

5.                  One of the documents included to this Court by the District Judge was a printout of notes of the Garda communications relating to the FCN which records that on 23 September 2022 the defendant called An Garda Síochána for the purposes of checking speed and calculation when she was then told it was average speed.

6.                  Based upon the foregoing the following three questions have been posed of the High Court by the District Judge: -

(a) were the provisions of SI No. 243/2017 - Road Traffic Act 2010 (Section 36(1) (Prescribed Notice) Regulations 2017 in relation to the particulars of the fixed charge notice complied with when the defendant was served with the original fixed charge notice?

(b) if not, is the fact that the defendant later became aware that the speed of 131km/h was a reference to her average speed over two locations at a time when she had the opportunity to accept and pay the fixed charge notice under Part 3 of the Road Traffic 2010 relevant to whether she had been afforded or adequately informed of the allegation made against her and the entitlement of this Court to proceed with the summons;

(c) even though I am entitled to amend the summons under O.38 of the District Court Rules where there is a variance between the complaint and the evidence adduced in support thereof, does the fact that the fixed charge notice differ from the evidence affect the entitlement of the court to record a conviction on foot of the summons?

 

Statutory Provisions

7.                  The following provisions are engaged: -

(a) section 47 of the RTA 1961 provides that persons shall not drive a mechanically propelled vehicle at a speed exceeding the speed limit and a person who contravenes this section is guilty of an offence;

(b) under s.35(1) of the 2010 Act a member of An Garda Síochána who has reasonable grounds for believing that a fixed charge offence is being or has been committed by a person the prosecution of such an offence shall not be instituted until an FCN has been served and if the person fails to pay the fixed charge in accordance with the notice;

(c) under s.36 of the 2010 Act the FCN is to be in the prescribed form.

(e) under s.44 of the 2010 Act where a person is served with a summons in respect of a fixed charge offence that person shall also be served with notice under that section ("section 44 notice") in the prescribed form advising the person they may not later than seven days before the date specified in the summons pay an amount 100% greater than the prescribed amount stated in the FCN;

(f) SI 243/2017 specifies in the schedule the prescribed notice for a fixed charge offence requiring details of the offence alleged to have been committed including speed and speed zone identifying the vehicle and location, time and date;

(g) s.12 of the Interpretation Act 2005 provides that where a form is prescribed any deviation from the form which does not materially affect the substance of the form or is not misleading in content or effect does not invalidate the form used;

(h) under O.84 of the Rules of the District Court it is specified that if the court is satisfied that any variance, defect or omission is not one which has mislead or prejudiced the accused or might affect the merits of the case, no objection shall be taken or allowed on grounds of a defect in substance or in form in the summons, warrant or other documents by which the proceedings were originated or of any variance between any such document and the evidence adduced on the part of the prosecutor. It is further provided that in cases of summary jurisdiction no variance between the complaint and the evidence adduced as to the time and place shall be deemed material provided the offence or cause was committed or arose within the jurisdiction of the judge by whom the case is being heard.

Jurisprudence

8.                  In DPP v O'Sullivan [2008] IEHC 375 Charleton J in the High Court considered an alleged number of defects in an FCN. At para. 10 of the judgment it was indicated that the law requires the necessary form to be substantially the same as the precedent and at para. 11 he quoted from DPP v Collins [1981] ILRM 447, a judgment of the Supreme Court, where the Supreme Court considered whether a reader of the relevant form would realistically be misled into concluding that its nature was different by reason of a slip, error, or variations from that of the prescribed form. The Court was satisfied that it was manifest that no such error occurred and in response to the questions raised by the District Court Charleton J opined that the summons should not have been dismissed on the basis that an error in the form of a notice, certificate or evidence would not render it invalid unless there is evidence that the defendant was misled thereby so that he or she thinks it is different in substance to what it is. The Court was satisfied that the test was as per the Supreme Court in Collins aforesaid.

9.                   The defendant suggests that in that matter location and speed were correct and it is said this distinguishes the within matter from the facts in that case. Such argument does not address the relevant test above, which test cannot be avoided by the Defendant based on the asserted difference in facts above.

10.               The defendant relies on the judgment of Mr Justice Barrett in DPP v Tuohey [2021] IEHC 357 where the Court was satisfied that the postdating of a FCN does not affect the validity of same.  The defendant suggests that this matter can be distinguished from the current matter as there was no argument that the defendant in that matter was misled or prejudiced or that there was any interference with the defendant's trial rights.

11.              Similarly in this matter there was no evidence of prejudice or interference with the Defendants fair trial rights. The height of the prejudicial evidence before the District Court was the content of the telephone conversation the defendant had with An Garda Síochána on 18 October 2022 when she indicated that she was not happy with the wording of the FCN as it did not incorporate the word "average". Counsel argued on behalf of the defendant that she could not sign the FCN and avail of the benefits thereof with the material substantial discrepancies alleged to be within the FCN. However, this amounts to an argument and not evidence by the defendant.

In DPP v Kinsella [2018] IEHC 474 McDermott J in the High Court indicated at para. 17 that the purpose of a FCN was to give an erring motorist a quick and efficient method of acknowledging wrongdoing with a lesser penalty. At para. 18 it was indicated that it was incorrect to say that the FCN was irrelevant to the trial of the charges in the summons.

In DPP v Grimes, a judgment of Mr Justice Barrett in the High Court on 12 July 2021 at para. 20 a number of principles were identified from a consideration of the jurisprudence which includes at sub. 7 thereof that provided the original complaint discloses an offence known at law, a defect in wording will not be beyond the reach of amendment - in that case the issue related to the addition of unnecessary words.

In DPP v Kinnane [2023] IEHC 426 Mr Justice Barr referred to para. 20 of Grimes aforesaid and respectively agreed. At para. 42 the Court identified that the charge sheet was deficient in the level of detail furnished. However, it was noted that the District Court had power to amend same. In that matter inadequate particulars were incorporated in the charge sheet. However, the Court was satisfied as in Grimes, that if the charge was an offence known at law, then an amendment was possible. At paras. 50 and 51 it was indicated that it was in the context of looking at any asserted prejudice that the making of a disclosure by An Garda Síochána was relevant and a matter the District Court was entitled to take into account in considering whether any actual prejudice occurred.

12.              In Avadenei v DPP [2018] 3 IR 217, a judgment of the Supreme Court of 20 December 2017 Ms Justice O'Malley at para. 94 of her judgment indicated that an analysis in each case of the actual effect of a procedural error or flaw in documentary proof on the fair trial rights of a defendant is necessary. At para. 98 it was indicated that the first question to be asked was did the form relied on comply with statute and regulations and at para. 99 it was indicated that the second question then is whether or not the Court can apply s.12 of the Interpretation Act 2005. That case concerned the admissibility of a certificate produced by the breathalyser test machine. Such a certificate has been afforded a certain statutory status as evidence before the courts. The Court was satisfied that the content of the certificate in no way was misleading, confusing or unfair and no right of the appellant was violated by its admission.

Opinion

13.              In the instant matter: -

(a) the serving of an FCN is a necessary prerequisite to the issue of the summons as per the provisions of the road traffic legislation aforesaid and therefore is a necessary proof in, and not irrelevant to, the trial of the charges in the summons. Unlike Avadenei the content thereof does not hold any statutory status;

(b) in accordance with the judgment of Mr Justice Charleton in the O'Sullivan matter the test is whether a reader of the relevant form would realistically be misled into concluding that its nature was different by reason of any variation error or slip from the prescribed form. Furthermore, the law requires the form to be substantially the same as the precedent;
(c) the FCN was served and clearly relates to a speeding offence on a given date where the defendant exceeded the 120km/h speed limit thereby breaching s.47 of the RTA 2010. The fact that the place and time of offence were identified at the end of the 9km over which the assessment as to the average speed was conducted are quintessential matters that can be addressed by s.12 of the 2005 Act. Clearly by virtue of the FCN the defendant was aware that the FCN related to a speeding matter on a particular date. This awareness is evidenced by the fact that she did communicate with An Garda Síochána in September inquiring as to speed and calculation. Subsequently in October the defendant expressed unhappiness with the wording of the form.

(d) no evidence was adduced by the defendant at the hearing that she found herself incapable of executing the FCN and availing of same in advance of the summons issuing by reason of an asserted existence of a serious flaw in the factual detail contained. Had the issue of prejudice arisen before the District Court in the evidence given, the District Court would then consider the  incapacity of the defendant to sign the form given it's asserted defect in wording together with the fact of the defendant having been informed in September 2022 in a telephone conversation with An Garda Síochána that the offence related to average speed, in assessing whether or not the defendant was realistically misled ;

(e) the only possible prejudice or fair trial breach asserted by the defendant is that she was unhappy with the wording of the FCN. Such unhappiness could not be said to amount to prejudice or interference with her fair trial rights. The submission that absent "average" on the FCN and reference to the location(s) between which "average" is calculated resulted in the defendant being materially misled in relation to the nature of the offence and its location, seems to me, in the context of the prejudice asserted, untenable;

(f) it is actual prejudice that is relevant as opposed to hypothetical or possible prejudice.

14.              I will therefore answer the questions posed by the District Court in the following terms: -

(1) The FCN was duly served and the error in the form of this notice does not render it invalid unless the evidence of the defendant, and the finding of the Court, was to the effect that the defendant was thereby misled, or he or she thinks it is different in substance to what it is. Given the lack of such evidence by the defendant in the circumstances the FCN was in compliance with the regulations and statutory provisions. Any perceived error could be dealt with under s.12 of the Interpretation Act 2005.

(2) That the defendant later became aware that it was an average speed of 131km/h at a time when she had the opportunity to accept and pay the fixed charge notice was relevant to whether or not she had been afforded adequate information on the allegation made against her and in dealing with any prejudice asserted.

(3) The fact that there was a variation between the complaint and the evidence adduced in support therefore does not affect the entitlement of the Court to record a conviction on foot of the summons under the provisions of O.38, rr. 1 to 3 of the District Court Rules above. 

15.              As this judgment is being delivered electronically, with regards to the issue of costs, as the respondent has been entirely successful, it is my provisional view that the DPP should be entitled to her costs, to be adjudicated in default of agreement. As the parties have not had an opportunity to make submissions as to costs, I shall allow the parties the opportunity to make written submissions of not more than 1,000 words within 14 days of this judgment being delivered should they disagree with the order proposed. In default of such submissions being filed, the proposed order will be made.