The High Court has ruled that dating a drink-driving fixed penalty notice one day after it is posted does not breach the relevant statutory provisions when the practice gives the recipient the full 28 days to pay.
Mr Justice Max Barrett delivered the judgment on 4 May 2021 in a consultative case stated from the District Court. The case concerned a Garda practice of dating notices for the day after they were posted. The High Court answered the District Judge’s first question “yes”: the statutory provisions were complied with. It said the practice did not affect the admissibility of evidence or require the prosecution to be dismissed.
The underlying allegation was that Brian Tuohey drove in Gort on 23 July 2017 with alcohol in his system at a level that constituted an offence under the Road Traffic Act 2010. Garda Mervyn J. Forde testified in the District Court that he stopped Mr Tuohey at about 3am after seeing his vehicle being driven without lights, formed the view that he was intoxicated, arrested him on suspicion of drink-driving and took him to Gort Garda Station for a breath test.
Forde agreed that the breath reading meant the case fell to be dealt with by fixed penalty notice. A computer print-out showed service on 26 September 2017, while the copy notice was dated 27 September. Evidence from Sergeant Kevin McCahey was that approved applications were sent electronically to the postal service at 3am and notices were printed and served later that day, but dated the following day to give recipients more time to pay.
For Tuohey, solicitor Mr Doherty argued that a notice could not be served before its stated date and that systematic post-dating undermined service. The State Solicitor for County Clare, Ms Casey, submitted that the date did not mislead or prejudice him and that the practice protected the full payment period.
The High Court said neither the Road Traffic Act nor the 2011 regulations required a notice to be dated on or before the day it was posted. It found no legal error in the practice. The judgment also recorded that Tuohey had not claimed actual prejudice, said he lacked the full 28 days, or alleged an infringement of fair-trial rights or due process.
The court did not answer the second question, which asked whether the District Court should assess prejudice if the statutory provisions had not been fully complied with: it said that premise did not arise because the provisions had been complied with. Its answers addressed the legal questions referred by the District Judge; the judgment did not decide the underlying drink-driving allegation.