A High Court judge has concluded that a section of the Road Traffic Act concerning fixed charge notices is unconstitutional.

The section prevented a man from arguing, as a defence to a charge of holding a mobile phone while driving, that he was not served with a first fixed charge notice.

The relevant legislation did not distinguish between those who chose not to pay a first fixed charge notice and those who genuinely did not receive it, Ms Justice Úna Ní Raifeartaigh said.

A number of District Court prosecutions have been on hold pending the High Court challenge by the man to his conviction, for which he received a €300 fine and five penalty points.

On Tuesday, Ms Justice Ní Raifeartaigh said she has yet to finalise her judgment on the complex case, and a similar case, and would deliver that on October 30th.

No final orders will be made before that.

Because she was aware the judgment would have widespread impact, the judge said she would outline her conclusion so the State would have time to either appeal or amend the relevant legislation.

Her conclusion was that section 44.10 of the Road Traffic Act 2010 - as amended by s.27 of the Road Traffic Act 2016 - is unconstitutional.

Section 44.10 provides that a person who is served with a summons and a Section 44 notice in respect of a fixed charge offence cannot have a defence by demonstrating that the fixed charge notice was not served on them in accordance with section 35 of the same Act.

Section 35 deals with the serving by gardaí of fixed charge notices and provides that a prosecution for a fixed charge offence shall not be instituted unless a fixed charge notice concerning the alleged offence is served on that person and they fail to pay the fixed charge.

Contradictory

In his High Court proceedings, the man, represented by Feichín McDonagh SC, with Brendan Hennessy BL, argued section 44.10 means defendants charged with the same offence may receive different penalties due to circumstances wholly outside their control - non-receipt of the fixed charge notice.

It was claimed such a distinction is in breach of the fair procedure and fair trial requirements of the Constitution and incompatible with the State’s obligations under the European Convention on Human Rights and Fundamental Freedoms.

When outlining her conclusion on Tuesday, Ms Justice Ní Raifeartaigh noted the State took the position the word “serve” could be given two different meanings within the context of one Act.

She considered this could not be the case and respectfully disagreed with previous High Court judgments on the issue.

She said section 35.2 of the 2010 Act and section 44.10 of the same Act, as amended by s.27 of the Road Traffic Act 2016, were contradictory. The legislation did not distinguish between those who chose not to pay the first fixed charge notice and those who genuinely did not receive it, she said.

She was thus prepared to quash the conviction and grant a declaration that section was unconstitutional.

She also suggested a “via media” would be if the District Judge retained a discretion to impose a fine and penalty points at the level of the first fixed charge notice but stressed that was just a suggestion.

The man was summoned on a charge of holding a mobile phone while driving.

While he admitted the offence during a District Court hearing in March 2018, he said he had not received the initial fixed charge notice.

He said he did receive the summons with the second fixed charge notice attached but claimed, because he did not get the initial notice, he was denied the opportunity to pay a lower fine.

After his lawyers applied to have the case dismissed on grounds he was prejudiced by not having the opportunity to pay a lower fine, it was adjourned. In May 2018, after the State argued before the District Court that, arising from Section 44.10, the District Judge was obliged to convict the man, the judge did so.