The State is still considering whether or not to appeal a High Court decision that a section of the Road Traffic Act concerning defences to fixed charge notices is unconstitutional, a judge has been told.
The decision could affect more than 28,000 prosecutions, the court previously heard. On Wednesday, Ms Justice Úna Ni Raifeartaigh granted a formal declaration of unconstitutionality arising from her decision last month.
She declared that the provisions of Section 44.10 of the Road Traffic Act 2010, as amended, are invalid having regard to the provisions of Bunreacht na Éireann, specifically the guarantee to a trial in due course of law in Article 38.1.
Noting there had been some confusion earlier about the extent of the declaration, the judge stressed it was limited to Article 38.1.
On the application of Feichín McDonagh SC, with Brendan Hennessy BL, for two people who separately challenged their convictions for holding a mobile phone while driving, she also granted full costs of the case to the applicants.
If an appeal is taken, a stay applies on the costs order to a first directions hearing of the Court of Appeal.
Michael Delaney SC, for the State, told the court the matter of appeal was still under consideration. Section 44.10 of the Road Traffic Act 2010, as amended in 2016, prevented a defence to the charge of holding a mobile phone while driving on grounds the accused person was not served with a first fixed charge notice.
The judge found section 44 infringes the constitutional right to a trial in due course of law because it did not distinguish between those who chose not to pay a first fixed charge notice and those who genuinely did not receive it. She also suggested that giving a District Court judge some discretion in sentencing might ensure that judge always retains a discretion to address the various practical situations which may arise.
In their separate District Court cases, the man and woman both admitted holding a mobile phone but argued they had not received the initial fixed charge notice. Had they done so, and paid the fine, that would have enabled them to avoid conviction, a higher fine and the mandatory five penalty points, it was argued.
The district judge in both cases was satisfied they had not received the first fixed charge notice but the State argued before the district court, arising from Section 44.10, the district judge was obliged to convict.
