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IEHC 174 ECLI:IE:HC:2019:174 AI generated

High Court rules District Court lacks discretion to dismiss speeding prosecution despite lack of FCN notice.

Case Number IEHC 174
Court / Authority
Jurisdiction Ireland (IE)
Decision Date
Outcome Dismissed
Machine-readable Markdown (.md)

Legislator summary

AI generated

The High Court ruled that the District Court judge had no residual discretion to dismiss a speeding prosecution after finding the allegation proven. Although the defendant argued he did not receive actual notice of the Fixed Charge Notice, the court held this fact was irrelevant under the 2010 Act. Consequently, the judge was bound to impose the mandatory penalty points and could not vary the sanction.

Legislator headnote

AI generated

s. 44(10) of the Road Traffic Act 2010; s. 47 of the Road Traffic Act 1961: Where a fixed charge offence is proven, the court lacks discretion to dismiss the prosecution or vary the penalty even if the accused was not served with the Fixed Charge Notice.

Keywords

AI generated
fixed charge offence residual discretion penalty points notice of FCN Road Traffic Act 2010 dismissal of prosecution mandatory imposition

Cited Legislation

AI generated
s. 44(10) of the Road Traffic Act 2010
This is because s. 44(10) of the 2010
s. 47 of the Road Traffic Act 1961
speeding contrary to Section 47 of the Road Traffic Act, 1961, even though I have found the allegation proved, where I
s. 44 of the Road Traffic Act 2010
This is because s. 44(10) of the 2010
Section 44 of the Road Traffic Act, 2010
“Notwithstanding Section 44 of the Road Traffic Act, 2010, do I have a residual discretion to dismiss the prosecution for
Section 47 of the Road Traffic Act, 1961
speeding contrary to Section 47 of the Road Traffic Act, 1961, even though I have found the allegation proved, where I
Road Traffic Act 2002
via the enactment of the Road Traffic Act 2002 […..] the District Court enjoys no jurisdiction to impose an informal

Cited Case Law

AI generated
Kennedy v. Gibbons [2014] IEHC 67
High Court dismisses judicial review where mandatory penalty points statute supersedes common law poor box jurisdiction.
[2014] IEHC 67
High Court dismisses judicial review where mandatory penalty points statute supersedes common law poor box jurisdiction.

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Full text

[2019] IEHC 174

THE HIGH COURT

[2019 No. 66 SS]

IN THE MATTER OF SECTION 52(1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA JAMES CURTIS)

PROSECUTOR

AND

EUGENE MCLAUGHLIN

DEFENDANT

JUDGMENT of Mr. Justice Twomey delivered on the 15th day of March, 2019

1. This is a consultative case stated from Judge McHugh of the District Court. He asks:

“Notwithstanding Section 44 of the Road Traffic Act, 2010, do I have a residual discretion to dismiss the prosecution for

speeding contrary to Section 47 of the Road Traffic Act, 1961, even though I have found the allegation proved, where I

am satisfied that the accused did not receive actual notice of the fixed charge penalty notice (FCN).”

The answer to this question is No.

2. The judge does not have a discretion to dismiss the prosecution for speeding, where he has found the allegation proven.

3. The fact that the accused did not receive actual notice of the FCN does not alter that fact. This is because s. 44(10) of the 2010

Act makes clear that it is not a defence for an accused to show that he was not served with the FCN:

“Where a person served with a summons accompanied by a section 44 notice in respect of a fixed charged offence, it

shall not be a defence for the person served with the summons to show that he or she was not served with a fixed

charge notice in respect of the alleged offence in accordance with section 35.”

4. In Kennedy v. Gibbons [2014] IEHC 67 at para. 26, Hogan J. made clear that where the Oireachtas makes mandatory the imposition

of penalty points in regard to certain traffic offences, the District Court did not have a discretion to vary the penalty imposed:

“In the case of those traffic offences where the imposition of penalty points has been made mandatory by the Oireachtas

via the enactment of the Road Traffic Act 2002 […..] the District Court enjoys no jurisdiction to impose an informal

sanction short of actual conviction such as accepting a donation to the poor box, as this would amount to an indirect

circumvention of these statutory provisions”

5. Accordingly, in this case, the District Court does not have any discretion to dismiss the prosecution in this case.