Court of Appeal dismisses appeal where defective fixed payment notice does not automatically bar criminal prosecution jurisdiction.

APPROVED NO REDACTION NEEDED

THE COURT OF APPEAL

Court of Appeal Record Number: 2024/216

High Court Record Number: 2021/497JR

Neutral Citation: [2025] IECA 209

Edwards J. Kennedy J. Butler J.

BETWEEN/

FLORIN MAZARACHE

APPELLANT/APPLICANT

- AND -

THE COMMISSIONER OF AN GARDA SÍOCHÁNA AND THE

DIRECTOR OF PUBLIC PROSECUTIONS AND THE MINISTER FOR

HEALTH

RESPONDENTS

Court of Appeal Record Number: 2024/215

High Court Record Number: 2021/502JR

BETWEEN/

NICOLAE MAZARACHE

APPELLANT/APPLICANT

- AND -

THE COMMISSIONER OF AN GARDA SÍOCHÁNA AND THE

DIRECTOR OF PUBLIC PROSECUTIONS AND THE MINISTER FOR

HEALTH

RESPONDENTS

JUDGMENT of Ms. Justice Butler delivered on the 23rd day of October 2025

Introduction

1. This judgment addresses the consequences of a finding that a fixed payment notice, served on a discretionary basis prior to an intended criminal prosecution, did not comply with the statutory requirements applicable to such notice. The issue arose in two identical judicial reviews taken by the appellants (a father and son) each of whom had been served with a fixed payment notice (FPN). They contend that the FPNs were invalid as a result of which the respondents should be restrained from taking any steps to prosecute the appellants “for any offence arising from (their) failure to make the fixed payment provided for in the impugned notice(s)”.

2. The High Court (Jackson J. [2024] IEHC 67) held that once a decision was made to invoke the FPN process, this became a precondition to prosecution; that the FPNs served on the appellants were invalid but that, once the issue was raised by the appellants, the deficiencies in the notices and the circumstances surrounding them are matters for the District Court to address at trial. Consequently, she refused the relief sought by the appellants. The appellants appealed the outcome of the proceedings and the last of the three findings set out above. In making their arguments as to the consequences of service of a defective FPN, the applicants rely heavily on the fact that the respondents have not crossappealed the first two findings referred to above.

3. In order to address the issues on this appeal it is useful to look at the factual context in which the issues arise including the statutory scheme under which FPNs are served and the findings made by the High Court before focusing on the legal arguments made by the parties.

Factual and Regulatory Background

4. The offences alleged to have occurred in these cases arose during a time when significant restrictions on public movement were imposed on public health grounds in response to the Covid-19 pandemic. Those restrictions included, inter alia, restrictions on travel both within the State and internationally. According to the appellants’ pleadings, in April 2021, at a time when such restrictions were in force, the appellants travelled to Dublin Airport intending to travel to Spain to visit family members. They were stopped at the airport by a member of An Garda Síochána, who advised them that if they travelled, they would be fined. Somewhat confusingly it is simultaneously contended by the appellants that the same member of An Garda Síochána led them to understand that they would not be fined and, after giving their names to the garda in question, they proceeded to travel.

5. The respondents contend that travel to Dublin Airport was “a manifest contravention” of Regulation 5(1) of S.I. 168 of 2021, - Health Act 1947 (Section 31A Temporary Restrictions) (Covid-19) Regulations 2021 (“the Temporary Restrictions Regulations 2021”). Those regulations were made under section 10 of the Health (Preservation and Protection and Other Emergency Measures in the Public Interest) Act 2020 amending the Health Act 1947. Regulation 5(1) prohibited travel to an airport or port for the purposes of leaving the State without reasonable excuse. A range of potentially acceptable reasonable excuses were set out on a non-exhaustive basis in Regulation 5(2). The detail of these is not of immediate concern save to observe that the prohibition on travel did allow for some, albeit limited, exceptions. Regulation 5(3) made a contravention of sub-paragraph (1) a penal provision for the purposes of section 31A of the 1947 Act.

6. Section 31A of the 1947 Act was a provision specifically introduced in 2020 to allow the Minister of Health make regulations to deal with the public health risks created by the Covid-19 pandemic. Section 31A(6) created a class of criminal offences comprising the contravention of, inter alia, a provision of regulations made under section 31A that was stated to be a “penal provision”. Further, under section 31A(6C)(a) the Minister could make regulations prescribing specified penal provisions to be “fixed penalty provisions”. By the Health Act 1947 (Fixed Payment Notice and Dwelling Event Provisions) (Covid-19) Regulations 2021 (S.I. 170 of 2021) (“the Fixed Payment Notice Regulations 2021”), the Minister made such regulations. Article 4 of the 2021 Regulations prescribed the provisions set out in Schedule 1 to be fixed penalty provisions and also prescribed the fixed penalty in respect of each such provision. [Somewhat confusingly section 31A(6C)(a) uses the term a “fixed penalty provision” to identify the offences to which the section relates whereas the Regulations enacted under that section use the term “fixed payment notice” being the notice which may be served when the offence in issue is a breach of a fixed penalty provision. Nothing turns on this.] The fixed penalty prescribed in respect of an offence under Regulation 5(1) was €2,000 - which was significantly higher than the penalties prescribed in respect of other offences which varied from €80 - €500. In the next section of this judgment, I will consider the statutory provisions relating to a fixed penalty notice in more detail.

7. Regulation 6 of the Fixed Payment Notice Regulations 2021 prescribes the form to be used in respect of an FPN. The precedent form contained in Schedule 2 suggests the following under the heading “alleged offence”: – “It is alleged that you have committed an offence (specify offence) on (insert date) at (insert time) at (insert location).”

8. As we shall see, the appellants’ complaint, which was accepted by the High Court is that the offence allegedly committed by them was not set out in the notices served on them dated 6th May 2021. In the portion of the form where an offence was to be specified, the notices read “Movement of persons airport/port - Contrary to Section 31A(6)(a) and section 31A(12) of the Health Act 1947”. No reference is made to Regulation 5(1) of the Temporary Restrictions Regulations 2021 nor indeed to those regulations at all. The statutory provisions referred to are ones under which contravention of a penal provision in regulations made under section 31A are made an offence triable summarily and subject to certain penalties. They do not identify the specific offence which it was alleged the appellants had committed. The notice did specify the date, time and location on and at which the alleged offence was committed. The appellants were each given the option of paying a fine of €2,000 within 28 days of the notice, i.e. on or before 2nd June 2021.

9. The appellants did not pay the fixed payment stipulated under the notice. Instead, immediately prior to the expiration of the time limit for payment, on 1st June 2021 they each instituted judicial review proceedings seeking an order of certiorari quashing the FPN and an injunction restraining the respondents from taking any steps to prosecute them for “any offence arising from his failure to make the fixed payment”. According to the High Court judgment only the second of these two reliefs was pursued at the substantive hearing.

10. The application for leave to apply for judicial review was opened and adjourned on 1st June 2021 and an interim order was made restraining the respondents from taking any further steps regarding the prosecution of the appellants. That stay was subsequently varied by consent to allow a complaint to be made within the appropriate statutory time limit so that prosecutions could be initiated at a later stage if the appellants’ proceedings were not successful. The respondents were put on notice of the leave application which was adjourned for hearing to 11th October 2022. On that date Ferriter J. granted the appellants leave to pursue their claim and continued the injunction which had been granted on 1st June. The judicial review itself was heard by the High Court on 23rd November 2023 and judgment was delivered refusing relief on 17th January 2024. The final order of the High Court provides that the interim injunction granted on 1st June 2021, and continued from time to time thereafter, be vacated. However, that portion of the High Court Order was stayed pending final determination of this appeal. Thus, the respondents remain restrained from pursuing any prosecution of the appellants for the offence in question save to the limited extent that complaints regarding the subject matter of the proceedings have been formally made.

Fixed Payment Notices

11. The central issue on this appeal is the extent to which a defect in a fixed payment notice under the Health Act 1947 precludes any subsequent prosecution for the offence to which the notice relates. To understand this issue, it is necessary to look at the statutory provisions under which these FPNs were served. It is also necessary to appreciate the distinction between this scheme, which operates on a discretionary basis, and similar schemes under the Road Traffic Acts (“RTA”) which operate on a mandatory basis. Much of the case law relied on by the appellants concerns mandatory fixed charge notices under the Road Traffic Acts.

12. The statutory provision under which the FPNs were purportedly issued in this case is section 31C of the Health Act 1947. This provides, in so far as relevant, as follows: – “(1) Where a member of the Garda Síochána, has reasonable grounds for believing that a person has committed an offence consisting of a contravention of a fixed penalty provision, that member may give to the person a notice in writing (in this section referred to as “a fixed payment notice”) in the prescribed form stating –

(a) that the person is alleged to have committed that offence,

(b) particulars of that alleged offence,

(c) that the person may, during the period of 28 days beginning on the date of the notice, make to such person as is specified in the notice at such place as is so specified a payment of such amount as may be prescribed being an amount of not more than €2,000 accompanied by the notice.

(d) that the person is not obliged to make the payment specified in the notice, and

(e) that a prosecution of the person to whom the notice is given in respect of the alleged offence will not be instituted during the period of 28 days beginning on the date of the notice and, that if the payment specified in the notice is made during that period, no prosecution in respect of the alleged offence will be instituted.

(2) Where a fixed payment notice is given under subsection (1) –

(a) the person to whom it applies may, during the period of 28 days beginning on the date of the notice, make to such person, and at such place, as is specified in the notice the payment specified in the notice, accompanied by the notice,

(b) the person specified in the notice may, upon receipt of the payment, issue a receipt for it and any payments so received shall not be recoverable by the person who made it, and

(c) a prosecution in respect of the alleged offence shall not be instituted in the period specified in the notice, and if the payments so specified as made during that period, no prosecution in respect of the alleged offence shall be instituted.

(3) In proceedings for an offence consisting of a contravention of a penal provision it shall be a defence for the defendant to prove that he or she made a payment, in accordance with this section, pursuant to a fixed payment notice issued in respect of that offence.”

13. Subsection (2) mirrors subsection (1) in that it allows for the making of the payment, precludes the institution of a prosecution within the 28-day period specified in the notice and absolutely precludes such prosecution thereafter if the payment is made. This is copper fastened in subsection (3) under which making a payment pursuant to an FPN is a defence in any proceedings for contravention of a penal provision regarding the same offence. Strictly speaking, of course, no prosecution should be issued if an FPN is served until after the time for payment has expired and not at all if the penalty is paid. Presumably subsection (3) is intended to capture a small number of cases in which a prosecution may have been instituted prior to the service of an FPN or where there is an issue as to whether the offence is the subject of any prosecution or the same as those which were the subject of an FPN. The legislation does not expressly preclude the issuing of an FPN after a prosecution has been instituted although the logic of the scheme would suggest that it will usually issue prior to any prosecution – it simply does not advert to this situation.

14. Notably, in contrast to the fixed charge scheme under the Road Traffic Acts, no other consequence flows from the service and non-payment of an FPN. Service of an FPN affords the alleged offender the opportunity to pay the fixed penalty and to avoid the risk of criminal prosecution and possible criminal conviction. If the alleged offender chooses not to pay the fixed penalty, he is in no better but also in no worse a position than if the FPN had never been served. In this regard the language used by the appellants in framing the injunctive relief claimed by them seems to me to be inapt. On the facts of the case the respondents are not seeking to prosecute the appellants for an “offence arising from (their) failure to make the fixed payment provided for by the impugned notice(s)”. The intended prosecution is for an offence allegedly committed by the appellants separate to and at some time in advance of the service of the FPNs. Service of an FPN in these circumstances was intended to afford the alleged offenders the opportunity to avoid a criminal prosecution and conviction but the prosecution which ensues in event of non-payment is not for an offence arising from the failure to pay. Rather non-payment means that the defence to the charge which would arise from making the payment pursuant to the notice is lost to the alleged offender. The offence remains the same, i.e. that specified in the notice.

15. The prosecution of an offence for the contravention of a fixed penalty provision proceeds identically whether or not an FPN has been served, save of course in circumstances where the penalty is paid and the prosecution cannot proceed at all. In the event of a conviction, the trial court is at large as regards the penalty that may be imposed under section 31A(12) the 1946 Act which, in the case of the first offence is a fine not exceeding €4,000 or one months imprisonment or both. In particular, the trial court is not obliged to impose a fine equal to or greater than the fixed penalty applicable to that offence. No other consequence follows.

16. This scheme stands in notable contrast to that applicable under the Road Traffic Acts which is described in some detail by McDermott J. in Kinsella v. DPP [2018] IEHC 474 and by Ní Raifeartaigh J. in O'Byrne and Neville v. DPP [2019] IEHC 715. The most striking difference is that under the RTA, service of a fixed charge notice (“FCN”) in respect of a range of offences is mandatory once a person is reasonably believed to have committed an offence falling within the scheme. Thus, an FCN must be issued to the offending motorist before a prosecution can be instituted. As noted above, although it would be logical to issue a FPN under the Health Act 1947 prior to institution of criminal proceedings, the legislation does not impose any such temporal requirement. Consequently it would be possible for proceedings to be instituted before an FPN is served under the 1947 Act, with payment of the penalty constituting a defence to the charge under section 31C(3).

17. Despite the differences in terminology, an FCN under the RTA serves exactly the same purpose as an FPN under the Health Act 1947. It allows the motorist to avoid prosecution and a possible conviction by payment of the specified charge. Under the RTA scheme the charge payable during the initial period increases if it is not paid and the motorist is afforded an extended period within which a higher charge can be paid. If no payment is made, at the end of the extended period the motorist will be served with two documents, a summons requiring him to attend court to answer a complaint in relation to the offence and a second fixed charge notice allowing the motorist a further period (of up to 7 days before the hearing date of the summons) to pay a fine, which again has increased. As under the Health Act 1947, a criminal prosecution may not be instituted during the initial and extended period allowed for the payment of the charge pursuant to the first notice and if a payment is made a prosecution may not be instituted at all. If a person pays the charge on foot of the second fixed charge notice (i.e. after the summons has been served), the existing criminal proceedings must be discontinued.

18. The second important distinction between the two schemes lies in the consequences for an alleged offender who chooses not to pay the fine but instead proceeds to trial before the District Court. If that person is acquitted, then no particular consequences arise. In this context it is worth bearing in mind that proceeding to trial carries a risk for the prosecution as much as for the defence. A fixed penalty/charge scheme allows an alleged offender to avoid a trial and the possibility of a criminal conviction by the payment of the fine but also allows the prosecuting authorities to achieve an acceptable result without the risks attaching to a contested criminal trial.

19. If the person is convicted, then under the RTA the consequences of conviction are fixed by statute and are invariably more serious than those which were available on foot of the fixed charge notice. A convicted person is likely to face a fine the maximum level of which considerably exceeds the amount of the fixed charge (although, depending on the provision, the District Judge may also have the discretion to reduce the fine below that amount) and will also be liable to a period of imprisonment. However, in practical terms the most serious potential consequence for the motorist lies in the fact that the statute stipulates the amount of penalty points which will be attached to the motorist’s driving licence both in the event of payment of the fine pursuant to the fixed charge notice and in the event of a conviction. A motorist who acquires a certain number of penalty points over a period of time will be disqualified from driving. In respect of the offence the subject of the charges in O’Byrne and Neville v. DPP a motorist who paid the fine in advance of trial incurred three penalty points whereas a motorist convicted of the same offence by the District Court had a mandatory five penalty points imposed on his licence. Thus, the consequences for an alleged offender of going to court and being convicted are, as the respondents put it “automatically worse” under the Road Traffic Act fixed charge scheme in a way that they simply are not under the fixed penalty scheme under the Health Act 1947.

High Court Judgment

20. The appellants approach this appeal on the basis that the High Court judgment makes two significant findings in their favour which have not been appealed by the respondents. Although it had been contested before the High Court, there was no dispute between the parties on the appeal as to the first of these. This was the conclusion that the FPNs as served did not comply with the requirements of section 31C(1)(b) and did not adequately comply with the form contained in Schedule 2 as prescribed by Regulation 6 of the Fixed Payment Notice Regulations 2021.

21. The second is based on the language used by the trial judge in her conclusions at paragraph 24 of her judgment that once the garda “decided to invoke the FPN process, this became a precondition to prosecution”. They note that the respondents have not crossappealed the characterisation of the FPN, once served, as a precondition to the prosecution of the criminal charges covered by that notice. The appellants argue that strict legal consequences flow from something being a precondition to prosecution, most notably that a prosecution cannot proceed or succeed unless that precondition is satisfied. To a certain extent the appellants’ point became more nuanced during the course of oral argument and sought to draw a distinction between the District Court’s jurisdiction to proceed to hear any charges against the appellants and the District Court having jurisdiction to convict the appellants of those charges. In effect it was argued that while the District Court might in principle have jurisdiction to embark upon an enquiry into the validity of the notice, once the High Court had determined that the notice was invalid, the District Court could not revisit the issue, and the automatic and only permissible consequence was that the charges against the appellants had to be dismissed.

22. The respondents argued that the finding that once the process is embarked upon the FPN becomes a precondition to prosecution is more complex than the appellants’ case suggests. They point to the fact that in the very same sentence in which the High Court judge used the phrase “precondition to prosecution”, she immediately continued “and consequently the adverse/deficient circumstances surrounding it (including inadequacies in the notice itself…) once raised at trial are matters for the District Court to address”. Thus, they argue that the rationale of the High Court judgment does not support the conclusion that a defect in the FPN precludes progression of a prosecution against the applicants once they elected not to pay the penalty pursuant to the notice.

23. The respondents' analysis is broadly speaking consistent with the High Court judgment as a whole. The “precondition to prosecution” issue is not one identified by the High Court judge as something which she had to decide. Instead, having set out the facts, at paragraph

8 of her judgment she describes the issue before her as “whether there has been a failure to sufficiently specify and particularise the offence concerned in the FPN, and if so, whether the failure… constitute such a lack of fairness to the applicants that the relief sought herein should be granted”. At a slightly later point in the judgment, she sets out “three distinct issues for consideration” at paragraph 16. Paraphrasing slightly, these are whether the FPN was deficient; if so whether the lack of specificity contravened fair procedures and, if so, the consequences of such a defect including whether the appellants should be granted relief.

24. Having concluded that the FPN was deficient, the judgment then turns to the second issue. It appears from their High Court written submissions that the case made by the appellants to that court was very much premised on the inadequacies in the FPN giving rise to a breach of fair procedures. As the appellants claimed to not know what offence they might be charged with, they argued that their lawyers could not properly advise them and consequently they did not have a fair opportunity to decide whether they should avail of the opportunity to pay the penalty and avoid prosecution. The High Court did not accept this argument. Instead, notwithstanding her earlier finding that the FPN was deficient, Jackson

J. held a paragraph 20: –

“The substance of what the Applicants were being notified was clear. Read with the information which the Applicants had as deposed to in their affidavits herein, they were not substantially misled. In addition, they were not being brought to court expecting to meet a different charge, they were being afforded an opportunity to avoid prosecution and conviction entirely against a factual background of which they were well aware from the terms of the FPN and their own knowledge.”

25. Jackson J. looked at the case law regarding documents instituting criminal proceedings (summonses and charge sheets) which clearly showed that an equivalent deficiency did not render a charge sheet a nullity or preclude correction by amendment at the trial itself (see Barr J. in DPP v. Kinnane [2023] IEHC 426). Crucially, Jackson J. observed at the end of paragraph 21: – “It would be extraordinary if a summons with less specificity than the FPN herein could, albeit with amendment, form the basis of a conviction but a FPN in similar terms could be used to ground an application to prevent a prosecution from proceeding”.

26. The appellants point out, correctly, that the Rules of the District Court expressly allow for the amendment of a “summons, warrant or other documents” provided the defect or omission leading to the need for amendment has not misled or prejudiced the accused and does not affect the merits of the case (see Order 38, Rules 2 and 3). They argue that there is no equivalent provision allowing for the amendment of an FPN and, anyway, given that the purpose of such a notice is to afford the alleged offenders the opportunity to avoid going to court it is difficult to see how provision for amendment by the District Judge to correct a defective FPN could realistically be factored into the process.

27. Finally, the judgment turns to the third question under the heading “The Role of the District Court”. Two cases are considered in detail at this point, Kinsella v. DPP and O'Byrne and Neville v. DPP, both of which are considered further below. At paragraph 27 Jackson J. notes that under section 31C(3) of the 1947 Act, payment of the penalty within a prescribed period is clearly something that can be raised before the District Court as a defence, as could the initiation of proceedings within the period allowed for payment. Thus, she queries whether the defects in the contents of a notice are also matters which might be so raised.

28. Ultimately, she concludes at para. 29 and the beginning of para. 30: - “29. I am of the view that references to service of a FPN must relate to a FPN which is compliant with the statutory provisions pertaining to it and any issue of noncompliance is a matter which may be raised before the District Court at trial as being a precondition to prosecution.

30. As to the consequences before the District Court if the precondition is found not have been complied with, that is not a matter for me at this time.”

Case Law

29. Although a large number of cases are cited in the High Court judgment and in the parties' written legal submissions, during the hearing of the appeal the focus reduced to three, namely Minister for Agriculture v. Norgro Ltd [1980] IR 155, Kinsella v. DPP and O'Byrne & Neville v. DPP.

30. Norgro concerned a summary prosecution before the District Court on charges relating to the mis-packaging of vegetables for sale under an EC regulation. Section 10(4) of the Petty Sessions (Ireland) Act 1851 requires a complaint in relation to a summary offence to be made within six months of the date of the alleged offence. A complaint was made and summons issued within that period, but the summons did not state on its face either the date of the complaint or the date of its issue. The matter was made returnable to the District Court on a date outside the six-month period.

31. The defendants argued that the District Court did not have jurisdiction “to embark on the hearing of the complaint”. The complainant sought to adduce evidence that the summons was issued within the six-month period (from which it would necessarily follow that the complaint was made within six months of the alleged offence since a summons could not issue without a complaint having been made). The District Judge took the view that he lacked jurisdiction to enter upon the hearing and proposed to strike out the summons but, on the request of the complainant, stated a case to the High Court. In answering the question posed, the High Court (Finlay P.) stated as follows (at p. 157): – “It is clear that this particular complaint was a complaint coming within the provisions of para. 4 of s.10 of the Act of 1851 and that, if the complaint was not made and the summons was not issued within six months of the date of the alleged offence, that fact would afford good defence to the defendants. However, the issue which arises on the case stated as a matter of law is whether that is a matter of defence to be raised by the defendants and determined by the District Justice upon evidence (as the complainant contends), or whether it goes to the root of the jurisdiction of the District Court to enter upon a hearing of the complaint. I am satisfied that the contention of the complainant is correct and that the time limit arising under section 10 of the Act of 1851 is a matter of defence for the defendants and does not go to the jurisdiction of the District Court to entertain the summons.”

32. In his subsequent analysis Finlay P. focuses on the difference between an issue going to the defence of criminal charges and one going to the jurisdiction of the court to hear those charges. The issue in the case was compliance with a statutory time limit for the institution of proceedings and the jurisprudence clearly established that this was something going to defence rather than to jurisdiction. Had this not been so, Finlay P. opined as follows (at p. 159): “If the question of a time limit went to the jurisdiction of the District Court, the difficulty could not and would not be cured merely by a statement of the date of the issue of the summons been printed on it, for that would not be evidence before the court since the summons is merely the document containing the complaint. It will be necessary in every case for the complainant to prove it’s a preliminary matter the date of the issue, as distinct from merely setting it out in the summons.”

33. Although Norgro does not use the language “precondition to prosecution”, the appellants contend that this case is directly analogous with Norgro even though the service of the FPNs was discretionary – therefore on this argument once the garda initiated the FPN process it was a matter which went to jurisdiction and not defence. The respondents disagree with the suggestion that Norgro has anything to say about something being a precondition to prosecution. Instead, they say the distinction is between matters which have to be raised by a defendant in order to become live issues (such as a time limit, which can frequently be waived) and something which goes to the root of a court’s jurisdiction to entertain the summons. In this context, the respondents do not distinguish between jurisdiction to embark on the hearing and jurisdiction to convict. They argue that the District Court either has jurisdiction in respect of the charges or it does not. It may be that the evidence or arguments adduced before the District Court will compel it to dismiss the charges or to strike out the summons, but in each case that is a matter for the District Court.

34. The High Court judgment acknowledges the difference of judicial opinion evident between the other two cases. These are two High Court judgments issued a little over a year apart both dealing with the mandatory fixed charge notice scheme under the Road Traffic Acts and defects in the service of a first fixed charge notice on offending motorists who are entitled to receive one under the relevant statutory provisions. Both cases also dealt with rebuttable statutory presumptions regarding the service of an FCN which was of some significance on the facts of the cases but is not of direct relevance to the issue here.

35. In Kinsella v. DPP the motorist in question had made complaints to his local authority landlord regarding the defective state of the post-boxes at the apartment block in which he lived and the fact that post had previously been stolen. On a prosecution before the District Court, the District Judge declined to hear evidence regarding non-receipt of the fixed charge notice on the basis that the notices were “an administrative matter” and nothing to do with the court. McDermott J. held that the District Judge had erred in refusing to permit the accused to address non-service of the FCN which he regarded, by analogy with Norgro, as a matter of defence to be considered by the trial judge. He noted the statutory provisions raising evidential presumptions regarding service of the FCN and non-payment of the penalty (which an accused person was entitled to rebut) all of which pointed to the relevance of these issues to the trial.

36. McDermott J. relied on the decision of White J. in DPP v. Kevin Tully [2009] IECC 1, [2009] 7 JIC 1301 which held that non-receipt of an FCN was not an automatic bar to a judge proceeding with a trial and that if the essential proofs were established, the trial judge could convict although a trial court retained the discretion not to proceed to conviction “if basic unfairness arises”. McDermott J. envisaged that such unfairness might arise in circumstances where an accused person had not received the FCN in circumstances which were outside of his control and that he was entitled to adduce evidence to this effect. The issue (i.e. non-receipt of the FCN) could also be relevant to the penalty to be imposed if the accused were convicted or indeed the District Judge might conclude that it was entirely unfair to record a conviction against an accused “who has successfully raised an issue as to the service of the fixed penalty notice”. He regarded this as the discretion contemplated in Tully and acknowledged that this would not “preclude the trial judge from determining that he ought not to exercise his discretion if the facts constituting the ingredients of the offence are established beyond a reasonable doubt and proceed to convict.”

37. Ní Raifeartaigh J. expressly disagreed with McDermott J.'s approach in O'Byrne and Neville v. DPP. This judgment deals with two similar applications for judicial review seeking to quash the convictions of two unrelated applicants each of whom maintained that they had not received the requisite fixed charge notice before the summons on foot of which they were convicted was issued. Both acknowledged that they had received the second fixed charge notice in conjunction with the summons and neither explained why they had not paid the penalty imposed under the second notice. In both cases the District Judge was satisfied that the applicants had not received the FCN. At paragraph 28 of her judgment Ní Raifeartaigh J. expressly held that the statutory provision which precluded the institution of a prosecution unless an FCN had been served and the penalty not paid made service of the notice a statutory precondition to prosecution. Consequently, the prosecutor would be required to prove at trial that the FCN was served. She characterised the regime as having an architecture which included “a statutory precondition unrelated to the ingredients of the offence as a necessary precondition to prosecution and (at least one) mandatory aspect to the penalty imposed upon conviction.”

38. She regarded the decision in Norgro as highly relevant to the matters which she had to decide and explained the relevance in two paragraphs both of which were relied on by both of the parties in this case. At paragraph 32 of her judgment she stated: – “It seems to me that the decision in Norgro is highly relevant to the analysis of the fixed charge notice provisions; although it concerned a time-limit, it seems to me to have a wider relevance as to how statutory preconditions to prosecution should be approached by a District Judge. Since Norgro, it has been generally accepted that as regards proof of a statutory precondition to prosecution, the correct procedure is that (a) the defendant must raise the issue i.e. call upon the prosecution to prove the issue; (b) the Court then hears evidence in relation to the matter (which may include both prosecution and defence evidence, depending on the issue), and (c) then determines the issue on the basis of the evidence he or she has heard.”

39. At a slightly later point she states at paragraph 36: –

“My understanding therefore of the effect of Norgro is that where a statute provides for a precondition to prosecution (i) the precondition is not a matter affecting the jurisdiction of the court to embark upon the hearing in the strict sense, but is rather a matter which should be raised as a defence by the defendant; (ii) once raised by the defence, evidence should be heard by the trier of fact on the issue; and (c) if the defence is successfully relied on by the defendant to whatever appropriate standard of proof is required and/or the prosecution have failed to establish the matter to the necessary standard of proof, then the appropriate outcome is an acquittal or dismissal of the prosecution. I pause again to emphasise that if reliance upon the defence is successful it is not a matter within the discretion of the trial judge, nor a matter of going to mitigation of penalty, but rather a matter going to conviction or acquittal; either the defence is successful or it is not. I will be disagreeing in this respect with the decisions in Kinsella and Brown discussed in the next section of this judgment.”

40. In paragraph 40 Ní Raifeartaigh J. explains that she disagreed with McDermott J. “insofar as he suggested that if the trial judge formed the view that the accused person had not received the fixed charge notice, he could then proceed to exercise a discretion”. She also disagreed with him as regards his interpretation of “service”, an issue which is not relevant to this case. The reason for her disagreement is explained at paragraph 43: – “I disagree with the above [passages of the Kinsella judgment] because my understanding of Norgro is that once a Norgro type-defence has been established, the accused person should be acquitted/charges dismissed and the question of exercising the discretion does not arise. Further, it should be borne in mind that in the present context, at least one aspect of the penalty is mandatory (the 5 penalty points) and the judge could not exercise a discretion to reduce this.”

41. It is clear that when Ní Raifeartaigh J. refers to a “Norgro–type–defence” she means a matter going to the jurisdiction of the court to entertain the proceedings. This use of language is slightly unfortunate in two respects. Firstly, the defence in Norgro itself was a time limit defence which did not go to jurisdiction and thus the phrase is used here to mean the exact opposite of what the defence in Norgro actually was. Secondly, the language used by Finlay P. in Norgro distinguishes between a matter going to jurisdiction and a matter going to defence. Although matters going to jurisdiction are frequently raised on behalf of the defence in criminal proceedings before the District Court, they are not “defences” to the criminal proceedings in the sense in which that term is used in Norgro itself.

42. Ní Raifeartaigh J. also disagreed with the decision of Burns J. in DPP v. Brown [2018] IEHC 471 where Burns J. followed the decisions in Tully and Kinsella in a case which also concerned non-receipt of a fixed charge notice and the rebuttal of the evidential presumptions regarding service. In particular, Ní Raifeartaigh J. did not agree that it was open to the District Judge to “consider and balance” evidence of non-receipt “with all of the evidence in the case, to determine what the import of same is, if any” as Burns J. had held.

43. Although the appellants attempted to make a Worldport argument (In the Matter of Worldport Ireland Ltd [2005] IEHC 189) to the effect that Jackson J. was obliged to follow O’Byrne and Neville v. DPP, it was ultimately conceded that in circumstances where there were conflicting lines of High Court jurisprudence (a fact acknowledged by Jackson J.) Worldport could not be usefully applied. However, the applicants accepted that their case depends on this court accepting that O'Byrne and Neville is correct and, by extension, that Kinsella and Brown were wrongly decided.

44. I am not convinced that it is necessary for this court to do that. All three of those cases, Kinsella, Brown and O'Byrne and Neville concerned the mandatory fixed charge notice scheme under the Road Traffic Acts in which not only was service of an FCN mandatory before a prosecution could be instituted, the imposition of different amounts of penalty points followed, again on a mandatory basis, depending on whether (and when) the fine in the notice was paid or whether the accused was convicted. This seems to be to be a material distinction from the FPN scheme under the Health Act 1947 where, in the first place, service of the notice is discretionary and, in the second, non-payment of the prescribed penalty where the notice has been served has no impact on the penalty to be imposed or any other consequences that may follow conviction. It would, I think be preferable for the differences between these two lines of case law to be resolved in a case concerning the fixed charge notice scheme under the RTA rather than in a case concerning a materially different scheme.

Consideration of the Appellants’ Arguments

45. The core argument made by the appellants is that the High Court erred fundamentally in treating the complaints made by them regarding the FPNs as matters which could and should be dealt with by the District Court at trial. They contend that once the High Court held the FPNs to be defective and to be a precondition to prosecution, this meant the District Court lacked jurisdiction to convict the appellants and would have to dismiss the charges against them.

46. The respondents disagreed and contended that a defective FPN does not deprive the District Court of jurisdiction to embark on the hearing of the criminal charges. On the respondents’ case the appellants may raise any issue they wish as to the validity of the FPNs and the consequences which flow from any defects in them before the District Court which has jurisdiction to enquire into all of these matters. They also argue that, although the FPNs did not adequately particularise the charge by reference to the regulatory provisions allegedly contravened, it is clear from the appellants’ affidavit evidence that they were not in fact misled and understood the nature of the charge they would face if they did not pay the penalty set out in the notice.

47. The appellants characterised this element of the respondents’ argument rather dismissively as a suggestion that the District Court should conduct some sort of a proportionality assessment. I do not understand this to be the import of the argument made. It will be recalled that the case originally made by the appellants relied on a lack of fair procedures resulting from the inadequacies in the FPNs which would warrant the grant of injunctive relief to prevent the trial. Unsurprisingly, given the way the case was originally framed, the respondents’ response was to rely on the substance rather than the form of the notices served and to point to the absence of any actual substantive misleading of the applicants (per Charleton J. in DPP (O’Brien) v. O’Sullivan [2008] IEHC 375.)

48. Had no judicial review been taken such that the High Court would not have expressed any view as regards the adequacy of the FPNs, then the respondents’ argument would clearly be correct. Although the adequacy of an FPN is not an ingredient in the criminal charges the appellants face, it is nonetheless relevant to the District Court’s consideration of that charge (per McDermott J. in Kinsella v. DPP). All the decisions to which this court was referred suggest the District Court’s jurisdiction to enquire into the service and/or contents of a statutorily prescribed notice includes a jurisdiction to strike out or dismiss the charges if the defects complained of give rise to a substantial breach of fair procedures or cause a substantial detriment to the accused. Of course, it follows that if the District Court is of the view that the alleged defects do not arise or, that if they do, they have not caused a breach of fair procedures or a detriment to the accused, it remains open to that court to continue with the trial and, if appropriate, to convict the accused.

49. To a large extent the question now is whether because of the fact that the High Court has determined the FPNs to be defective (i.e. the first issue the District Court would likely address on any enquiry), the remaining issues which the District Court would normally consider (i.e. the consequences which flow from that defect) have now been removed from its jurisdiction so that it cannot legally proceed to a conviction. If the answer to that question is “Yes” it has a number of implications, not least that it will operate as a substantial disincentive to the use of FPNs under the Health Act 1947 in circumstances where their service is entirely discretionary.

50. On the appellants’ case any material error in an FPN would deprive the District Court of jurisdiction to convict the recipient of the underlying criminal charge regardless of the circumstances of the case. In general terms such mechanisms provide a far greater benefit to the accused person (avoiding a criminal prosecution/conviction) than to the prosecutor (avoiding the risk of an unsuccessful prosecution). However, the risk to the prosecutor in serving a defective notice which cannot be remedied by amendment at trial is actually greater than the risk of not succeeding in a prosecution when account is taken of the fact that inadvertent errors in the originating documents which ground the prosecution can be corrected by the District Court.

51. In my view, it would also be counter-productive in policy terms to have issues falling properly within the jurisdiction of the District Court determined on a pre-emptive basis by the High Court in response to judicial review proceedings issued before any criminal prosecution has been initiated in a manner which deprives the District Court of jurisdiction. It is perhaps telling in this regard that although the appellants originally looked for orders of certiorari to quash the FPNs, they abandoned that relief before the substantive hearing. The normal relief granted when a document issued pursuant to a statute is held not to be compliant with the statutory provisions pertaining to it, is an order of certiorari quashing the document. If the FPNs were quashed on the basis that they were not legally valid, a question would necessarily arise as to the effect that this would have on any subsequent prosecution when service of an FPN is not mandatory in the first place. The appellants’ arguments as to the consequence of an FPN being a precondition to prosecution seem to me to be dependent on the existence of a defective FPN. It is very much open to question whether the removal and quashing of an FPN, thereby rendering it a legal nullity, would operate to prevent any subsequent prosecution in circumstances where an FPN was not required to be served in the first place.

52. The core of the appellants’ argument lies in their reliance on the finding of the High Court that, once the FPN process under the Health Act 1947 had been embarked upon, that process became a precondition to prosecution. It is clear from the High Court judgment, in which Jackson J. held that the consequences of the deficiencies she had identified were a matter to be dealt with by the District Court, that she was not using the term “precondition to prosecution” in the same way that Ní Raifeartaigh J. did in O’Byrne and Neville. Instead, Jackson J. may have had the provisions of sections 31C(2) and (3) in mind and the need for these sub-sections to be complied with once section 31C(1) is invoked through the service of an FPN. Under sub-sections (2) and (3) a prosecution cannot be instituted during the period for payment under the FPN, a prosecution cannot be instituted if the payment set out in the FPN is made and the fact of payment is a defence to any prosecution for the offence the subject of the notice. Obviously once the garda exercises the statutory discretion to serve an FPN, the prosecutor cannot simultaneously disregard service of the FPN and institute a criminal prosecution during the relevant period or if the fine is paid. In that sense, completion of the FPN process (and non-payment of the fine) is a precondition to prosecution.

53. However, Jackson J. did not regard the identified deficiencies in the notices as sufficient to deprive the District Court of jurisdiction to hear the criminal charges. Consequently, it may be more helpful to consider her judgment in Norgro terms – were those deficiencies a matter going to the jurisdiction of the District Court to hear the criminal charges or a matter going to defence? Notwithstanding her use of the phrase a “precondition to prosecution” it seems clear to me that she regarded the deficiencies in question as going to the appellants’ defence rather than as a fundamental issue going to the jurisdiction of the District Court. As noted, she rejected the appellants’ argument that they were in fact misled by the unsatisfactory description of the alleged offence in the notices and held that the consequences of the deficiencies in light of this fact should be addressed by the District Court. She expressly refused relief on the basis that the matters raised were all matters which could and should properly be considered by the District Court.

54. I am of the view that Jackson J. was correct in this regard. An error in a notice which the prosecutor is not obliged to serve cannot, in my view, deprive the prosecutor of the entitlement to bring the prosecution nor the District Court of jurisdiction to hear it. Jurisdiction to hear the criminal case necessarily includes jurisdiction to convict the appellants if, on the evidence and having heard whatever legal arguments the parties wish to make, the District Judge is satisfied that that is the correct outcome.

55. The situation in O’Byrne and Neville was materially different in that the prosecutor did not have the option of bringing the prosecution in the absence of a validly served fixed charge notice. The difference can be illustrated by asking the question – what would be the legal effect of an order quashing an FCN and an FPN respectively? If an FCN is quashed, then the prosecutor cannot proceed with a prosecution as service of an FCN is a statutory precondition to the institution of a prosecution in all cases. The RTA simply does not allow a motorist to be charged with a relevant offence without affording him or her the opportunity to avoid prosecution/conviction by paying a fine and accepting a reduced number of penalty points before the prosecution is commenced. In contrast, if an FPN is quashed, there is no statutory impediment to the prosecutor proceeding with a prosecution as service of the FPN was not mandatory in the first place. If an FPN is served, this precludes the initiation of a prosecution until the period for payment expires or if the payment is made. The process must be completed before a prosecution can be pursued. However, it does not follow that if there is a flaw in the FPN process that the District Court loses its jurisdiction to hear and determine the criminal charge. There is nothing in the statutory scheme which suggests that conviction is automatically precluded if there is a defect in the FPN and, with the exception of O’Byrne and Neville (which looked at a materially different scheme) there is nothing in the other authorities (which, in fairness, also look at a different scheme) which supports such a conclusion either.

56. This is not to say that the identified deficiencies are not relevant to the proceedings before the District Court, nor indeed the fact that the High Court has found those deficiencies to exist. A District Judge may take the view that the failure to clearly identify the potential charge unfairly deprived the appellants of an opportunity to avoid prosecution/conviction to such an extent as to constitute a “basic unfairness” in the Tully sense even though the prosecutor was not obliged to afford the appellants that opportunity. On the other hand, the District Judge might take the view that, notwithstanding the deficiencies in the FPNs, no unfairness arises because the appellants were aware of the subject matter of the notices and were not misled as to the nature of the charges they were facing. Certainly, there is no suggestion that had they sought to make payments pursuant to the notices, that the prosecutor would have refused to accept them on the basis that the notices were invalid.

57. In outlining these potential outcomes, I do not intend to suggest to the District Court the approach that it should adopt. The important point is that these issues are all matters within the jurisdiction of the District Court to be addressed by whatever District Judge hears the criminal case. The findings made by the High Court in favour of the appellants do not (and were clearly not intended to) deprive the District Court of that jurisdiction.

58. In light of the conclusions above, the appellants’ appeals are dismissed.

59. In the circumstances, as the appellants have been wholly unsuccessful in their appeals, it seems to me that the appropriate order for costs is one in favour of the respondents. However, as the appeals were identical and were heard together, I propose limiting the costs orders so that although the respondent is entitled to recover the costs of each appeal to include the paperwork and other preliminary items in respect of each appeal, only one set of costs is awarded in respect of the hearing of the appeal itself. I propose making an order in these terms unless, within 14 days of delivery of this judgment, any party who objects notifies the Court of Appeal Office and submits short submissions (no more than 1500 words) to which the other side will have a further 10 days to reply.

60. Edwards J. and Kennedy J. have read this judgment in advance of its delivery and have indicated that they are in agreement with it and with the orders proposed.