The High Court has ruled that a provision governing fixed-charge notices for road-traffic offences was incompatible with the constitutional right to a fair trial because it conflicted with another provision of the same law.
In a judgment delivered on 30 October 2019, Ms Justice Ní Raifeartaigh considered judicial review proceedings brought by Brian O’Byrne and Orlagh Neville, who had each been convicted in the District Court of holding a mobile phone while driving. Both admitted the offence but said they had not received the initial fixed-charge notice. The District Judges accepted that they had not received it, yet convicted them.
The High Court examined the relationship between section 35(2) of the Road Traffic Act 2010, as amended, and section 44(10). Section 35(2) says a prosecution cannot be instituted unless the initial notice has been served. Section 44(10) says it is not a defence for a person summoned to show that the initial notice was not served.
The judge interpreted “served” consistently across the relevant provisions as meaning posted and received. Under section 38, posting creates a rebuttable presumption of service; the accused can rebut it by proving, on the balance of probabilities, that the notice was not received.
On that interpretation, the provisions gave contradictory directions: failure to prove service meant the prosecution’s statutory precondition had not been met, pointing to dismissal, while section 44(10) required that non-service could not provide a defence. The judge concluded that a trial under those conflicting rules could not meet the constitutional guarantee of a fair trial under Article 38.1. She said the law did not give a person facing prosecution reasonable certainty about what would lead to conviction or acquittal.
The ruling addressed the legal challenge to the provision; the judgment did not quash either conviction or set out a specific order doing so. The source text ends with the court’s conclusion and does not record a separate order on the relief sought.
The applicants also argued that the provision breached the constitutional guarantee of equality. The judge rejected that claim, finding they had chosen to contest the summons rather than pay the later fixed-charge amount, and that the difference between the earlier and later fixed-charge penalties was de minimis. The decision was limited to the Article 38.1 fair-trial ground.