Skip to main content
Normal View

Seanad Éireann debate -
Wednesday, 10 May 2017

Vol. 251 No. 10

Courts (No. 2) Bill 2016: Committee and Remaining Stages

I welcome the Minister of State, Deputy Stanton, to the House.

Section 1 agreed to.
Question proposed: "That section 2 stand part of the Bill."

I welcome the Minister of State to the House. I am seeking clarification from him. As we know, a person who is alleged to have committed a road traffic offence currently has two opportunities to avoid going to court, the first of which involves paying a fixed-charge penalty within 28 days. If he or she fails to do that, he or she has another 28-day period in which he or she can pay the fixed amount with a 50% surcharge. This Bill provides for a third payment option, which will involve the addition of 100% to the original fixed amount.

Every week, thousands of cases are thrown out of court by District Court judges because there is no proof that the fixed-charge penalty notice was issued in the first place. I suggest to the Minister of State that rather than pursuing the third option, as proposed in this Bill, it is time for fixed-charge penalties to be sent by registered post. That is the only way of proving someone actually received a fixed-charge penalty notice in the first place. Like many other people of whom I am aware, I have been summoned to the District Court without having received a fixed-charge penalty notice in the post. It is up to the District Court judge in question to decide whether he or she believes the person before the court. I believe such a situation is not acceptable.

If we are going to have transparency in the operation of fixed-charge penalty notices, the issuing of such notices will have to be registered sooner or later. The fine is sufficient to cover this charge. I understand it costs less than €5 to register, so what is the problem? My suggestion would cut out many of the difficulties being faced by the District Court on a weekly basis. I would be interested to hear what the Minister of State has to say in this respect.

I thank the Senator for raising this issue, which was discussed and debated during the preparation of this legislation. As the Senator knows, the purpose of this Bill is to provide part of the legislative framework necessary for the introduction of a third payment option for road traffic offences in respect of which a fixed-charge notice may be served under Part 3 of the Road Traffic Act 2010. This third payment option will give a person to whom a District Court summons has been issued an alternative to attending court in respect of an alleged road traffic offence for which he or she was originally issued with a fixed-charge notice.

A fixed-charge notice provides for two payment options before a summons is issued requiring a person to attend court: a first period of 28 days during which the person may pay the fixed amount, followed by a second consecutive period of 28 days during which the person may pay the fixed amount plus 50%. The key objective now proposed is to provide a third payment option involving the payment of the fixed amount plus 100%, as provided for in section 44 of the Road Traffic Act 2010, which has yet to be commenced. The technical solution for the deduction of the third payment option has been developed under the aegis of the working group on the criminal justice fixed-charge processing system, which is jointly chaired by the Department of Justice and Equality and the Department of Transport, Tourism and Sport.

This solution gives rise to the amendment of the Courts Act 1986 now proposed in the Bill as the Act currently operates on the basis of summonses issued as a singular document by the District Court office which is then conveyed, electronically or otherwise, to the applicant or the agent for service. It is proposed to administer arrangements to use the third payment option which involves the Garda Síochána taking on the printing of District Court summonses in order to facilitate the integrated printing in the cases of fixed-charge notice of a summons and a fixed-charge notice.

I mentioned on Second Stage, but by way of information, 325,762 fixed-charge notices were issued and 234,000 were paid, which is a 72% payment rate. The intention here is to increase that payment rate. The suggestion put forward by the Senator is a good suggestion and has been considered, but the conclusion reached was that this third payment option will improve matters considerably. The whole system of issuing and recording and so on has improved dramatically also. The situation where somebody would get a summons not having received the original fixed-charge notice, should not happen anymore. As we know, An Post is extremely reliable. It will now be assumed that when something is posted or sent out, it is actually sent out and received. There are three different goes at it, as it were. Rather than going to the administrative work and burden of having to register every single charge, and one can see the volume here, it is now considered that this approach will actually work which is why we are doing this.

I accept what the Minister has said, yet in the figures he quoted, 28% of people did not comply. What proof is there that those 28% received the fixed-charge penalty in the first place? Most people who find themselves before the court do not want to be there in the first place. If they receive a fixed-charge penalty notice and they do not pay it and a summons arrives and there is the option of paying a 100% surcharge on the initial amount, then of course, rather than go to court they will pay it. There is still no proof that they got the initial fixed-charge penalty in the post.

The only way of ensuring, and proving that somebody did initially get the fixed-penalty charge, is by registering the post. If we were to conduct all of our other legal affairs in such a manner, and 28% of people did not turn up in court, it would not be long before there was a change. I am asking the Minister of State if it is not futile to implement this third payment option, because innocent people will pay the 100% additional charge because they do not want to face court when the problem is that they never received it in the first place and there is no proof that they did.

A few things arise. The option of registering the post was considered. It was felt that it would not improve the payment rate significantly, as many people would be reluctant to accept or call to the post office for a registered letter if they believed it contained a fixed-charge notice. Just because it is registered does not mean that people have to accept it, if they think there is something in it that they do not want. They can say they do not want it and send it back.

In addition, a delivered registered letter does not prove that the person named received the notice and the offender still has the option of claiming that he or she never received the notice. Someone else in the house might sign for it and the person could say he or she never got it and we are back to where we started again. There is no proof that it is going to significantly improve matters.

Personal service of the document is the only means that one can guarantee proof of service on an alleged offender. That is something that happens in other jurisdictions where there is a summons service and things like that. An additional legislative provision, Part 3 of the Road Traffic Act which will be commenced, provides that where a summons is served in respect of a fixed-charge offence, evidence that a fixed-charge notice was not served shall not be a defence to the alleged offence. Part 3 further provides that service of a fixed-charge notice may be executed by posting or delivering it to the address inside or outside the State at which the person ordinarily resides which, at the time of the alleged offence, the person gave to the detecting garda or at which the vehicle is registered.

If a vehicle is registered at a certain address, that is where it will be sent. That is where the person is more than likely to be living, and it is posted to that address. In addition, it is also provided that in any proceedings in respect of a fixed-charge notice, a document purporting to be a certificate or receipt of posting or delivery issued by An Post or another postal service is admissible in evidence as proof of the posting or delivery, as in the case of a fixed-charge notice, until the contrary is shown. What we are saying is that we acknowledging that there are difficulties up to now. That is why we are doing this, but this third option will really improve matters. Hopefully it will. The only other option is the serving of summonses personally to people by a summons server of some sort. I am sure the Senator will appreciate that would be a very difficult thing to do and be quite expensive.

To repeat, people can decide not to accept a registered letter if they feel there will be bad news in it, and someone else can sign for a registered letter and the person can still say that they never got it. Registering the letter was properly examined and it would not improve matters enormously. We feel this option would bring matters up to where we want them to be.

I stand in support of my colleague. It is standard practice when serving court proceedings to send them by registered post. When one goes higher up the line, to the High Court and Circuit Court, and certainly in the higher courts, one sees personal service being required. I would not subscribe to the idea that a notice sent out could be deemed to be served without any evidence having to be forthcoming. If somebody refuses a registered letter, that is known by the person who issues it. One can seek substituted service which could be serviced by ordinary post.

In the normal course, if a registered letter is signed for and it is known that the address given, and the address it has been served at, is the place the defendant would ordinarily reside, that should be sufficient to deem service on the person unless the contrary can be shown. The Minister of State is going one step further than that by saying that it is not necessary to prove it was served at all. This is why we are in this situation with summonses and letters of notification on fixed-charge penalties and people not having received them and due process not having been observed.

One cannot get away from registered post because with the sheer numbers of speeding fines and fixed-charge penalties involved, to require personal service of all these would involve an awful lot of manpower or womanpower on the part of the Garda. There should at least be a check. I am not saying it would work in every case and the Minister of State is right, people can send back registered letters, but I still think for due process and fairness, we should know every effort has been made.

If that system had been in place we would not have the problem we have with the Garda now because where a registered letter was returned by somebody who was going to get a fixed-charge notice, the next time there would be a note back from the post office saying this person had refused to accept service and seeking substituted service. There is a bit more paperwork or bureaucracy involved but in lots of cases we do not mind bureaucracy if there is accountability. It is not accountability on the part of individuals that we are talking about here but on the part of the system. It is this part of our criminal justice system that is experiencing a crisis at the moment regarding the Garda. I would have more confidence. Having been a legal practitioner, I do not understand how it has never been done by registered post, notwithstanding what the Minister of State said.

Every day legal practitioners must overcome the issue of service of documents and they do so. Registered post is a very important tool. Legal practitioners can make an application for substituted service where this is not working and where they know where the person ordinarily resides. Most people who have vehicles have a fixed abode and an address. There are many ways to pin them down and verify their address. I am concerned about a presumption that people received a notification if they did not.

I welcome the third option. In certain circumstances, it would be the fairest way to go. It would keep people out of court but they would pay a fine. Obviously, this would be an increased fine but people would not have to go to court. We are trying to develop a system outside of clogging up the courts, which would be severely clogged up if all these fixed charge notices were brought before them.

I call Senator Ó Donnghaile.

Does the Minister of State wish to respond?

I will let the Senators offering have their say. When the Minister of State comes in we might be forced to put the question.

I do not think the Minister of State will have too much to come back at me on in this regard. This is a technical Bill. As has been reflected today in the discussion so far, this is a technical issue. Senator Wilson is right to ask the questions he has asked, and is even right to put forward some solutions he feels might assist in the issue. It is my party's view this technical amendment is worthy of support and should proceed in the hope it can address some of the vast scale of discrepancies and issues which have presented themselves before the courts with regard to people suggesting or alleging they did not receive the first fixed charge notice. I spoke very briefly on Second Stage on this issue.

We must remember when discussing this issue it is about more than people being issued fixed charge notices, and whatever is alleged about whether or not they received it this is about people speeding and about the chronic issue of speeding and loss of life on roads in the State and in the North also. In the first instance, we need to reflect on this when we approach this subject matter and at least take cognisance of it when discussing matters such as this. It is useful to have this discussion. The Minister of State has at least made the right trajectory on this matter. It is worthy of review and I am sure the Minister of State will concede it will be reviewed with regard to the concerns other Members have raised. The Bill has our support.

I have no wish to hold up this legislation. I am merely making the point that as a result of the third payment option, as Senator Mulherin already stated, people who do not receive the initial fixed penalty notice will pay the 100% surcharge to avoid going to court. I do not think this is acceptable. This is a technical Bill and I will not hold it up, but if we want transparency and accountability the only way to prove delivery is to register the post. If somebody does not accept a registered letter the person delivering it knows he or she called to that address and nobody accepted the letter. At present, thousands of people who never received a fixed penalty notice appear in court on a weekly basis. As the Minister of State said, the legislation states they will be deemed to have received the notice. This is not good enough. I firmly believe the initial legislation is open to a constitutional challenge. We are all concerned about road safety and people speeding and, thankfully, this year there has been a reduction in the number of people killed on our roads. In addition to this, I ask for justice for people who do not receive the initial fixed charge penalty notice and who will now be forced to pay money to avoid going to court. To me this is not acceptable. While I have no difficulty with the Bill and my party supports it, we need to look at it again. That is all I am saying.

Does the Minister of State have anything further to add?

I respect what the Senator has said and he is right to bring it up. It is a very important issue. We all acknowledge that An Post has a very good record of delivering mail. If mail is posted it gets delivered and very little of it gets lost. This brings us to two questions, namely, whether it was posted in the first place and whether it was ignored after it arrived. We accept that An Post has a very good record of delivering post, and we know the men and women of the postal service go out of their way and when an address is vague they can still find the person for whom it is intended. I know investigations are ongoing at present into why so many are not received in the first place.

If we have a situation where a letter is registered sometimes the recipient must go to the post office or post depot to collect it and people might decide they know what it is and they will not go. In other cases, somebody else might sign for it and the intended recipients will tell the truth when they state they never received it, that somebody else signed for it and that they did not see it or receive it. We must change this and we are doing so, whereby evidence that a fixed charge notice was not served shall not be a defence to the alleged offence.

Senator Ó Donnghaile is correct that we are focusing on speeding and other offences. An Garda Síochána is considering other options, such as moving to proof of service. The alternative of outsourcing the entire summons service process for fixed charge notices is also being considered. In the interim, the advice is this technical change might make a huge difference and we might not have to go the extra mile with respect to the personal serving of summonses and outsourcing the entire issue. The advice is this should make a massive difference, bearing in mind all the other changes made to bring the Court Service and the Garda together in issuing notices and what has been done in this regard.

I thank Senators for their support on this. I take on board their reservations and suggestions. It is felt the Bill will improve matters considerably. I also take on board the suggestion the legislation needs to be constantly reviewed once it gets through and is passed. We still need to review this and keep on top of it. Perhaps the Oireachtas committees could look for reports on it on a regular basis. It is quite important this would happen to make sure it works. If it does not work it must be revisited in the short term. I am confident it will make a massive difference, but let us wait and see how it works. This is the advice we have. I thank the Senators for their suggestions and constructive criticism of the Bill, which are very important. I will take on board what they have said and it will be taken seriously.

Question put and agreed to.
Sections 3 and 4 agreed to.
Title agreed to.
Bill reported without amendment, received for final consideration and passed.
Sitting suspended at 4.30 p.m. and resumed at 5 p.m.