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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Kennedy -v- Judge Gibbons [2014] IEHC 67 (20 February 2014)
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Cite as: [2014] IEHC 67
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Judgment Title: Kennedy -v- Judge Gibbons Neutral Citation: [2014] IEHC 67 High Court Record Number: 2013 565 JR Date of Delivery: 20/02/2014 Court: High Court Composition of Court: Judgment by: Hogan J. Status of Judgment: Approved |
Neutral Citation Number: [2014] IEHC 67 THE HIGH COURT [2013 No. 565 JR] BETWEEN JOSEPH KENNEDY APPLICANT AND
DISTRICT JUDGE CONAL GIBBONS RESPONDENT AND
DIRECTOR OF PUBLIC PROSECUTIONS NOTICE PARTY JUDGMENT of Mr. Justice Hogan delivered on 20th February, 2014 1. Where the imposition of penalty points in respect of a traffic offence is made mandatory by statute and where the accused does not dispute the offence, does a District Court judge have any jurisdiction to strike out the proceedings in return for the accused making a donation to the court poor-box? This is the essentially the issue which is presented by the present application for judicial review. Some preliminary observations
4. While the practice has itself no statutory basis and while there is a paucity of case-law on the point, the poor box system was nevertheless so widespread and inveterate through out the State both before and after 1922, that it must accordingly be regarded as part of the common law which was carried over into our modern legal system by Article 50.1 of the Constitution, its obscure and uncertain origins notwithstanding. Although, moreover, the existence of such a jurisdiction is not to be found in any of the acknowledged sources - such as textbooks or decisions of venerable judges of some antiquity - referencing the pre-1937 common law which was carried over on the coming into force of the Constitution, its existence nonetheless such an embedded feature of our legal system that it must be now regarded as part of that common law, if only by reference to the principle communis error, facit jus. 5. The Supreme Court has made it clear that the courts should be reluctant to upset established practice without good reason. As Henchy J. explained in Mogul of Ireland Ltd. v. Tipperary (N.R.) County Council [1976] I.R. 260, 273 – admittedly in the context of overruling past decisions of long standing – that:
7. Second, if the existence of the poor box as part of the common law inheritance must now be accepted in the manner which I have indicated, then the extent to which this common law practice is to be abrogated, qualified or even abolished remains entirely a matter for the Oireachtas. There may be some who think that the existence of such a practice operates as a salutary and humane check on the possible harshness of the sentencing system while also providing a source of revenue for needy and deserving charities. There may be others who think the continued existence of such a practice is unsatisfactory and that it enables the affluent (and others) to escape the proper strictures of the criminal justice system, while simultaneously eroding a source of revenue for the State. 8. If, however, the law is considered to be unsatisfactory inasmuch as it allows for the continued existence of the poor box system, then any change in this regard would represent a policy judgment which is exclusively committed to the Oireachtas by Article 15.2.1 of the Constitution. The circumstances of the present case 10. It might be noted that it would have been open to the applicant to pay a fixed fine charge of €80 together with two penalty points had the fine been paid within 28 days from the date the notice first issued. If this notice is disregarded, the fine then increases to €120 which must be paid within a further 28 days. It is only after this period that a District Court summons is issued. 11. In the case of a first time offence, the maximum penalty is €1,000, together with an endorsement of four penalty points on the applicant’s driving licence. Section 2(2) of the Road Traffic Act 2002 (“the 2002 Act”) (as amended) provides that:
13. The applicant’s principal complaint is that the District Judge effectively refused to consider the possible application of a legitimate sentencing option, namely, the acceptance of a donation to the poor box in lieu of a formal conviction. This presents the more fundamental question as to whether that option was in fact open to him in respect of an offence such this. 14. While speed is undoubtedly a major factor in road accidents and road deaths, it must nevertheless be acknowledged that the offence in the present case was a petty one. In particular, no suggestion was advanced that the offence was other than purely routine in character or that the applicant’s speed posed an immediate danger to other road users. Recalling the applicant’s personal circumstances – a pensioner who had led a blameless life with no previous convictions – his case might be thought by many to have presented the Court with an ideal opportunity to utilise the poor box jurisdiction. 15. The Court nevertheless declined to consider this option and proceeded to convict the applicant. The real question, therefore, is whether the District Judge had any other option in the circumstances. For the reasons I will now set out, I find myself obliged to conclude that he had no such option. 16. The critical point here is that the Oireachtas has imposed a statutory scheme of mandatory penalties (i.e., the penalty points regime) following conviction for certain road traffic offences. In these circumstances it must be accepted that the Oireachtas has thereby supplanted the common law and in the process has greatly restricted the District Judge’s sentencing options in respect of those offences. 17. The decision of Ó Caoimh J. in Director of Public Prosecutions v. Maughan, High Court, 3 November 2003 is, perhaps, the closest case on point. In that case the District Judge accepted a donation to the poor box in lieu of convicting the accused of the offence of drunk driving. The facts were admittedly exceptional, in that the accused had suddenly been roused from his bed by a message informing him that his father was seriously ill in hospital. The accused was in the course of driving to the hospital in response to that urgent summons when he was arrested for drunk driving. It was later determined that his blood alcohol level exceeded the statutory maximum and the accused indicated that he would plead guilty to the offence. 18. Ó Caoimh J. nevertheless held that the District Judge had acted ultra vires by taking this admittedly humane and perfectly understandable course:
20. To my mind, the present case is indistinguishable in principle from Maughan. Just as in that case, the Oireachtas has here prescribed a mandatory penalty and sanction upon conviction, namely, the endorsement of four penalty points upon the offender’s licence. As we have already noted, s. 55 of the Road Traffic Act 2010 also provides for the disapplication of the Probation of Offenders Act 1907 to speeding offences and other traffic offences. 21. The cumulative effect of these statutory provisions is to override the District Court’s power at common law to accept a donation to the poor box in lieu of proceeding to a formal conviction in the case of those road traffic offences which attract the application of penalty points on a mandatory basis. 22. It is true that in Ryan Kearns P. held that the District Judge in that case was entitled to accept a donation to the poor box following a plea of guilty in respect of the offence of sexual assault in lieu of a formal conviction for that offence. It is also true that the offence of sexual assault is inherently graver and more serious than the offence of speeding. The essential difference, however, between this case and Maughan on the one hand and Ryan on the other is that the Oireachtas has elected for policy reasons to provide for mandatory sanctions and penalties upon conviction in the case of certain categories of road traffic offences. No such mandatory penalties have been prescribed in the case of sexual assault (along with a significant majority of other offences coming before the District Court), so that in those circumstances the District Court’s power at common law to accept a charitable donation from an accused in lieu of a formal conviction continue in principle to hold full sway. The failure to grant an adjournment 24. I agree that it would have better had the respondent agreed to permit a short adjournment for this purpose, not least given that a difficult point of law had now unexpectedly arisen. Yet I cannot think that the applicant was seriously prejudiced in the circumstances by the refusal to grant the adjournment. 25. As counsel for the notice party, Ms. Buckley, pointed out, the applicant had in any event pleaded guilty to the offence, so the only issue related to the actual imposition of a penalty. The fine which was imposed - €60 – was relatively modest and the imposition of the penalty points was, as I have found, also mandatory by law. The present case cannot therefore realistically be compared with cases such as O’Callaghan v. Clifford [1993] 3 IR 603 and Stephens v. Connellan [2002] 4 IR 321 as these were both cases where the refusal by the District Judges in question to adjourn was, in fact, seriously prejudicial to the accused in those cases. Conclusions
ii. In the case of those traffic offences where the imposition of penalty points has been made mandatory by the Oireachtas via the enactment of the Road Traffic Act 2002, and where the Probation of Offenders Act 1907 has been disapplied to such offences by s. 55 of the Road Traffic Act 2010, the District Court’s common law poor box jurisdiction must be taken to have been superseded by these statutory provisions. In such cases it must accordingly be concluded that the District Court enjoys no jurisdiction to impose an informal sanction short of actual conviction such as accepting a donation to the poor box, as this would amount to an indirect circumvention of these statutory provisions. |