The unconstitutionality of certain sections of the road traffic laws could lead to the wiping out of thousands of penalty points and convictions for speeding if a High Court challenge to the legislation succeeds.
Lawyers for Dublin man Liam Kearney, who was convicted, fined and had five penalty points attached to his driver's licence for a speeding offence, told a High Court judge that parts of the 2010 Road Traffic Act were unconstitutional.
Mr Kearney, of Roebuck Castle, Clonskeagh, Dublin 14, has brought the challenge after having been convicted in the District Court for speeding on 19th September 2017, fined €400 and given five penalty points. He lost an appeal to the Dublin Circuit Court last month but had the fine reduced to €80.
Barrister Brendan Hennessy, counsel for Mr Kearney, told Mr Justice Seamus Noonan that his client had not received the initial Fixed Charge Notice of the offence which would have allowed him time to pay any fine, thereby avoiding any prosecution in court. He accepted Mr Kearney had received a summons with the second fixed charge notice attached.
Mr Kearney gave evidence that he had only received a summons with the second Fixed Charge Notice attached which provided that if an amount 100 per cent greater that the original fixed charge were paid at least seven days in advance of the District Court Hearing, the prosecution would be discontinued.
He said that as a result of not of not having received the initial Fixed Charge Notice he had been denied the opportunity, mandated by the Act, to pay a lower charge and avoid a conviction. He had not paid the second Fixed Charge Notice as he had felt he was being prejudiced through no fault of his own.
Mr Hennessy, who appeared with John Shanley Solicitors, told the court that an ex-parte application seeking to quash the Circuit Court conviction was being brought before the High Court.
Mr Hennessy told Judge Noonan that because Mr Kearney did not receive the original fixed charge notice a prosecution should not have been initiated. Despite this the Circuit Court was obliged under sections of the 2010 Road Traffic Act to convict Mr Kearney and that part of the Act that was being challenged was incompatible with provisions of the Constitution.
Counsel said a section of the Act offended the principles of fairness, rationality and proportionality. As a result a situation had been created where defendants charged with the same offence may receive different penalties due to circumstances outside their control- namely the non-receipt of a fixed charged notice.
Counsel said Sections 34 to 47 of the Act were commenced on 1st June 2017 and these provisions introduced a new requirement --- the service of a second type of Fixed Charge Notice at the time of service of a summons.
He said Section 35 (2) states: "A prosecution in respect of a fixed charge offence shall not be instituted unless a Fixed Charge Notice….has been served on the person concerned under this section and the person fails to pay the fixed charge in accordance with the notice."
In the lower courts the judges were apprised of the ruling of Mr Justice Michael Twomey who had held that even if the court was satisfied an accused had not received a Fixed Charge Notice the court could not dismiss the prosecution if the offence was proved.
In his proceedings against the Director for Public Prosecutions, the Minister for Justice, Ireland and the Attorney General Mr Kearney seeks an order quashing his conviction. He also seeks declarations that certain sections of the 2010r Road Traffic Act are invalid having regard to the Articles 38 and 40 of the Irish Constitution.
Permission to bring a challenge by way of judicial review was granted by Judge Noonan and the matter was adjourned until November.