The High Court has refused two applicants’ bid to stop prosecutions arising from fixed payment notices issued after they went to Dublin Airport in April 2021, while finding that the notices did not comply with statutory requirements.
Ms Justice Nuala Jackson ruled that the notices’ description of an alleged “Movement of persons Airport/Port” offence, with references to sections of the Health Act 1947, did not adequately specify the offence. The notices did not identify the particular regulation allegedly breached, although the later summonses did.
The applicants, Florin Mazarache and Nicolae Mazarache, sought an injunction preventing the Commissioner of An Garda Síochána, the Director of Public Prosecutions and the Minister for Health from prosecuting them for failing to pay the €2,000 notices. They argued that the notices did not give enough detail for them to understand the allegations and decide whether to pay or contest the matter.
The applicants said they went to Dublin Airport on or about 17 April 2021 intending to travel to Spain to visit family. They said a Garda member spoke to them about travel restrictions and a possible fine, and that they understood they could travel without incurring a fine. No affidavit was filed by the Garda member involved, so that account was unchallenged in the judicial review. The judge noted, however, that what the applicants understood and what the Garda member intended might not have been the same.
The applicants did not pay the notices. Complaints were made and summonses issued in the District Court, where proceedings were stayed pending the judicial review. The summonses alleged that each applicant had travelled to the airport to leave the State without reasonable excuse, contrary to Regulation 5(1) of the relevant 2021 Covid-19 regulations.
The judge found that the notices did not fulfil the requirement to specify the alleged offence by referring only to sections of the primary legislation, given the number and complexity of offences provided for in regulations made under it. But she distinguished a fixed payment notice, which offers a way to avoid prosecution without a finding of criminality, from a summons initiating criminal proceedings. She held that the notice’s defects did not make the process so unfair that prosecution should be stopped.
Once the Garda member invoked the fixed payment process, compliance with its statutory requirements became a precondition to prosecution, the judge said. The applicants could raise alleged defects in the notices before the District Court at trial. The High Court did not decide what consequence would follow if the District Court found a precondition had not been met.
Justice Jackson refused the relief sought and vacated the injunctions staying the prosecutions. She listed the matter for 1 February 2024 to address consequential matters.