I welcome the Minister of State, Deputy David Stanton and his officials. Did the Minister of State wish to make an opening statement on the Bill before we proceed?
Courts (No. 2) Bill 2016: Committee Stage
I have a brief opening statement, if the Chairman will allow it. In setting out to discuss the Government amendments being proposed at today's meeting, members might like to have a sense of how and why those amendments have come about.
Section 2 of the Bill as initiated deals with the amendment of section 1 of the Courts (No. 3) Act, 1986, which is the primary purpose of the Bill.
Section 1 of the Act of 1986 deals with the issuing of summonses in respect of offences as a matter of administrative procedure. In 2004, the 1986 Act was recast, principally for the purpose of allowing for the issue of a summons to be effected by transmitting it by electronic means to the person who applied for it. This allowed for the issuing of summonses electronically by the relevant court office in addition to the issuing of summonses manually. The introduction of the third payment requires not only the issuing of summonses by electronic means but also the creation of the summons in an automatic manner.
The drafting approach to achieve this has undergone a revision by the Office of the Attorney General since the Bill was published. The five Government amendments to section 2 of the Bill now being proposed are intended to give effect to this revised drafting approach. The revised drafting approach is intended to ensure that the amendments to the 1986 Act to be made by the Bill are as legally robust, straightforward and challenge-proof as possible. The original drafting approach in the Bill as initiated sought to integrate the new method of the creation of a summons in an automatic manner with existing provisions of the Act of 1986, particularly those relating to the notion of an original summons document and true copy summonses. However, in the new automated system, there is no longer considered to be a need for a physical original in circumstances where both the original and the copy are created from the same source data and on foot of an automated process. The revised drafting approach as set out under today's amendments seeks to follow through on this conclusion by not applying the original true copy separation in the case of the new automated process for the issuing of summonses. The revised drafting approach therefore provides in a clearer, more distinct way for the new automated system as an additional but still legally robust method for the issue of a summons. It is mainly technical stuff, as the Chairman will appreciate.
I thank the Minister of State.
I move amendment No. 1:
In page 3, to delete lines 15 to 32, and in page 4, to delete lines 1 to 8 and substitute the
“ “(2A) (a) The issue of a summons by electronic means in accordance with subsection (2) shall be deemed to have been effected where the appropriate office transmits by electronic means all of the information necessary to create the summons in an automatic manner and, accordingly, the issue of the summons shall be deemed to have occurred on the date of such transmission.
(b) The validity of a summons, the issue of which is deemed to have been effected in the manner specified in paragraph (a), shall not be affected by reason of the date of its issue falling on a date that is earlier than the date of its creation.
(c) Where the procedure for the issue of a summons specified in paragraph (a) is used and more than one document is created in an automatic manner in respect of the same alleged offence and each document so created is identical to each other document so created as to both form and content, then, each such document shall be the summons.
(d) A reference in this subsection to the creation in an automatic manner of a summons shall be construed as a reference to the creation of the summons on paper in legible form by electronic means.”,”.
This amendment is proposed to be made to section 2A. Section 2 provides for the amendment of section 1 of the Courts (No. 3) Act 1986. Section 2 provides for the insertion of a new section 2A into the 1986 Act.
Amendment No. 1 proposes to replace the wording of the current section 2A with alternative wording. This alternative wording arises from the further work of the Advisory Counsel and Parliamentary Counsel and is aimed at expressing in a more straightforward manner the essential elements of the new system of the printing of summonses.
The proposed section 2A(a) essentially repeats the provision for the issue of a summons by electronic means to be deemed to have been effected by the transmission by the relevant court office of the information necessary to create the summons in an automatic manner.
The proposed section 2A(b) deals with the reality in the context of an automated system that the date of issue of a summons by the transmission of the electronic information may be earlier than the date of the creation of the summons. In this context, the creation of the summons is the printing of the summons as a paper document.
The proposed section 2A(c) departs from the approach in the Bill as initiated in respect of the deeming of each summons to be a true copy of the summons. The amendment now proposes that where more than one document is created in respect of the same alleged offence, each such document shall be the summons.
The proposed section 2A(d) essentially repeats, but in a more straightforward manner, the provision of the Bill to the effect that the creation in an automatic manner of a summons shall be taken to be the printing on paper of the summons.
Do members wish to raise any matters? Deputy Jack Chambers is first.
What controls are being incorporated in the amendment to prevent what we have seen happen with other automated systems around the Department of Justice and Equality, for example, the fixed charge notice system? Effectively, we are legislating for an automated system around summonses. What is being done to stop other scenarios occurring that could potentially be adverse to the citizen in the context of what the Minister of State is trying to do?
I have a slight concern in this regard. If we are doing something by electronic or automated means, in a human context what is within the legislation to prevent something adverse occurring to the person who is going to receive the summons, given that it is an automated system?
I do not quite follow the question. This is a robust and integrated measure. The systems have been tested. The purpose is to give it legal sanction. I am unsure if I have followed the question completely or what is meant by it.
We can revert to Deputy Chambers.
I have a question on the same point. I wish to elaborate on what Deputy Chambers has said.
The law is set out in the document. However, can the committee be satisfied that a summons issued by electronic means will not be issued if a fixed charge penalty has been paid already?
The summons is being generated automatically but the data still has to be put in to the system by the relevant member. People will be involved in putting the data into the system initially.
The situation raised by Deputy O'Callaghan should not arise again. Those particular issues have been highlighted. The system has been tested and that should not happen anymore. Obviously, they should not have happened in the first place. The changes to the system in PULSE will apply here as well.
We are dealing with the first amendment to section 2. We are questioning any aspect of the amendment that members wish to raise. Are Deputy Chambers and Deputy O'Callaghan satisfied at this point?
I may consider tabling an amendment on Report Stage to the effect that a summons cannot issue by electronic means if a fixed charge notice penalty has been paid already. That is something I was keen to notify the committee of. We may do it on Report Stage.
Absolutely, one would have thought that would have been the case in any event. However, recent matters have raised an awareness.
It is one thing for a summons to be issued. Part of the problem is the question of whether the summons was received by the person at the other end. What if a person claims they never got it? There were anomalies.
The third payment option means that when the second notice arrives, a third payment option is available. I understand up to 80% of the first notices are being paid. An Post has a rigorous method of delivering post. Whether people were simply ignoring these things or whether they arrived in the first place are the questions that arose. The PULSE system has been changed such that these errors cannot recur.
Deputy O'Callaghan’s point is interesting. However, if a person says that he never got a summons, what happens then? We must ensure that the PULSE system works and that is our purpose at the moment. The third payment option should make the system far more robust.
Maybe it is a discussion for another day. The anomaly still exists. I got a summons but I never got a fixed charge notice. That was relatively recently – just before Christmas. I get enough fixed charge notices, but I definitely did not get the notice in question. I am well aware that was the case. When we raised it with the Garda Commissioner last week, her answer basically implied that the problem was with An Post.
When the initial penalty points scandal arose, systems were put in place to correct the problem. Then, a year later, another protected disclosure was made in either 2013 or 2014. In that case, the claim was made that the system was still faulty despite all the checks that had been put in place. The excuse given to get over the new restrictions in place with the penalty points was based around undeliverable An Post mail. An independent investigation was set up by the Minister under the offices of the Garda Síochána Ombudsman Commission. Moneys were provided by the Department of Justice and Equality. Three years on, that investigation has not taken off. It is correct to raise concerns about the systems. I reckon the systems are seriously flawed still. It is probably something of a side issue to the legislation, which I believe to be a good measure. However, it needs to be factored in.
The third payment option interacts with the summons and the fixed charge notice system. The two agencies that manage the systems are the Courts Service and An Garda Síochána. At present a fixed charge notice is issued by an outsourced print service provider on behalf of An Garda Síochána. Summonses are issued by the Courts Service following an application from An Garda Síochána. These two processes need to be linked to provide for the third payment option.
The technical solution between the Courts Service and An Garda Síochána represents a departure from current arrangements made necessary to accommodate the simultaneous generation of a summons issued by the Courts Service and a fixed charge notice issued by An Garda Síochána. The agreed approach involves the electronic generation of summonses by means of an electronic file transfer from the Courts Service to an external print service provider contracted by An Garda Síochána. Each summons will then be individually printed with an associated fixed charge notice and will represent the second such notice and the third opportunity to pay, for the purposes of service.
The systems have become more integrated and linked together now. However, the Deputies are correct. We have to be vigilant and monitor this. It will be monitored carefully from now on to ensure the problems Deputy O'Callaghan and Deputy Chambers brought up cannot and will not happen again.
No other Deputies are showing.
I move amendment No. 2:
In page 4, to delete lines 10 to 16 and substitute the following:
“ “(4A) This section shall not operate to prevent—
(a) a transmission under subsection (2) (including one that effects the issue of a summons in accordance with subsection (2A)) containing information relating to different summonses, or
(b) a transmission under subsection (4) containing more than one application referred to in subsection (3).”,”.
This amendment is proposed to be made to section 2(b). Section 2(b) provides for the insertion of a new subsection 4A into section 1 of the Courts (No. 3) Act 1986. Amendment No. 2 proposes to replace the wording of section 4A with alternative wording. This alternative wording arises from the further work of the Advisory Counsel and Parliamentary Counsel aimed at expressing in a more precise manner the reality that a single transmission by electronic means can, in respect of more than one summons, or more than one application, be made for a summons. This provision allows for the automated processing within an information technology environment of batches of summonses or applications of summonses.
Does any member wish to raise any matter in respect of amendment No. 2?
I move amendment No. 3:
In page 4, to delete lines 17 and 18 and substitute the following:
“(c) by the insertion of the following subsection after subsection (8):
“(8A) Where the issue of a summons is effected in accordance with subsection (2A), references in any enactment relating to the service of summonses shall—
(a) in the case of references to an original summons (whether the references employ the word ‘summons’ or the expression ‘original document’), be construed as references to a summons to which subsection (2A) applies, and
(b) in the case of references to a true copy of a summons, be construed as references to a summons to which subsection (2A) applies.”,”.
Amendment No. 3 relates to the construction to be placed on references in other enactments to an original summons and a true copy of a summons.
The Bill, as initiated, proposed that the matter be dealt with by way of an amendment to the existing section 1(8) of the Courts (No. 3) Act 1986. Amendment No. 3 proposes the insertion of a new subsection (8A) into section 1 of the Act of 1986 as an alternative to the originally proposed amendment to subsection (8). This alternative approach arises from further work of the Advisory Counsel and Parliamentary Counsel and flows from the new subsection (2A), whereby every printed document in respect of the same alleged offence is to be considered the summons. The new subsection (8A) provides that references in other enactments to an original summons or a true copy should be construed as references to the summonses created and printed on paper under the new system.
I move amendment No. 4:
In page 4, to delete lines 19 to 24 and substitute the following:
“ (d) by the substitution of the following subsection for subsection (9):
“(9) In any proceedings it shall be presumed, unless the contrary is shown, that —
(a) a document purporting to be a summons is a summons duly applied for and issued, and
(b) the date specified in the summons as being the application date is the application date.”,
(e) by the insertion of the following subsection after subsection (9) (inserted by paragraph (d)):
“(9A) In any proceedings it shall be presumed, unless the contrary is shown, that a summons to which subsection (2A) applies was created in an automatic manner on the basis of information transmitted as specified in paragraph (a) of that subsection.”.”.
This relates to certain presumptions provided for with regard to summonses, that is, a document purporting to be a summons, the application date specified in the summons and the summons being created on the basis of the information transmitted in the application for the summons. The Bill, as initiated, proposed that this matter be dealt with by way of an amendment to the existing section 1(9) of the Courts (No. 3) Act 1986. Amendment No. 4 proposes the insertion of a new subsection (9A) into section 1 of the Act of 1986 as an alternative to the originally proposed amendment to subsection (9). This alternative approach arises from further work from the Advisory Counsel and Parliamentary Counsel. The new subsection (9A) provides for presumption that the summons created under the new subsection (2A) is created on the basis of the information transmitted by the relevant court office. Also included in amendment No. 4, again on the advice of the Parliamentary Counsel, is an amended section 1(9) of the Act of 1986. This amended subsection (9) is essentially a restatement of the existing subsection, with the substitution of a presuming clause for a deeming clause. This reflects the preference on the part of Parliamentary Counsel for the drafting solution of a presuming clause rather than the deeming clause in the Act of 1986. However, the legislative effect is intended to be essentially the same.
I move amendment No. 5:
In page 4, to delete lines 25 to 37, and in page 5, to delete lines 1 to 3.
This proposes the deletion from the Bill as initiated of amendments that had been proposed to be made to subsections (10) and (14) of section 1 of the Courts (No. 3) Act 1986. Subsection (10) of the 1986 Act provides that in the case of a summons that has been issued by electronic means, a true copy of the summons shall be evidence of the summons concerned. In the Bill as initiated it had been proposed to also apply this provision to a summons created in an automatic manner under the new subsection (2A). Amendment No. 5 proposes that subsection (10) will remain unaltered and that consequently it will continue to apply only to summonses issued by electronic means in accordance with section 1(2) of the 1986 Act. This alternative approach arises from further work of the Advisory Counsel and Parliamentary Counsel and flows from subsection (2A), whereby every printed document in respect of the same alleged offence is to be considered the summons.
Subsection (14) of the 1986 Act provides for definitions of various terms used in the Act. In the Bill as initiated it had been proposed to add a definition of the term "document" and amend the definition of the term "true copy". The definition of the term "document" was proposed to clarify that a document includes electronic material or electronic information. Within the Act of 1986, a summons is referred to as a document so the new definition was intended to have the effect of reflecting the issue of summonses as part of a batch of electronic data transmitted from the relevant court office to a print service provider acting on behalf of the Garda Síochána. It is no longer proposed that this drafting approach shall be followed in the Bill. This change arises from further work of the Advisory Counsel and Parliamentary Counsel and arises from the new subsection (2A), whereby every printed document in respect of the same alleged offence is considered to be the summons. The term "true copy" is currently defined in the 1986 Act with regard to a summons that has been issued electronically as a reproduction in writing of the summons certified by the prosecutor as being a true copy thereof. In the Bill as initiated, it had been proposed to amend this definition. However, as I previously explained, under the revised drafting approach, every printed document under the new automatic system is to be considered the summons. Consequently, the matter of a true copy of the summons does not arise under the new and more straightforward approach.
I move amendment No. 6:
In page 5, lines 6 to 12, to delete all words from and including “Notwithstanding” in line 6 down to and including line 12 and substitute the following:
"Notwithstanding any other enactment or rule of law, a summons may be issued under and in accordance with the Act of 1986 in respect of a fixed charge offence within the meaning of Part 3 (amended by Part 5 of the Road Traffic Act 2016) of the Act of 2010 in the circumstances provided for by the Act of 2010 where the fixed charge offence is alleged to have been committed by a person who is a member of the Garda Síochána.".".
This provides for the amendment of section 3 of the Bill by the insertion of enhanced alternative language. Section 3 of the Bill provides for an exception to made from the general rule that a summons against a person who is a member of the Garda Síochána shall be signed by a judge. This procedure cannot be accommodated in the proposed new streamlined arrangements for the creation of a summons in an automatic manner. Section 3(1)(a) in the published Bill directly relates to the operation of the third payment option and is therefore an essential component of this Bill. It is being replaced by the new and clearer language prepared in consultation with the Advisory Counsel and Parliamentary Counsel with amendment No. 6. Section 3(1)(b) is not directly linked with the third payment option and would not form part of that system when it goes live. The case for its inclusion in this Bill now has receded following further consideration of the overall policy framework, including relevant road traffic legislation and following further consultation with Advisory Counsel, Parliamentary Counsel and the Department of Transport, Tourism and Sport. Accordingly, it is proposed that for present purposes, section 3(1)(b) will be deleted from the Bill and it will be revisited as part of a wider review of the summons process under which it is a more logical fit.
It seems a bit anachronistic that a summons against a garda must be signed by a judge when it is not the case with anyone else. Perhaps it is something we must look at and it must make it more difficult for a garda to summons another garda if, in order to do so, he or she is required to get the imprimatur and signature of a judge. We can take it up on Report Stage but perhaps the committee or Minister should look at it to see if the process could be harmonised and the summons of a garda could be treated in the same way as a summons for anybody else. We can note the legislation dealing with this dates to 1924.
I indicated earlier that this amendment would remove that requirement.
It is what is being proposed.
Exactly. It is being looked at in the context of a miscellaneous provisions Bill as well. This amendment would remove the requirement as it would not fit in the more streamlined system.
What will be the process in comparison with that applying to a normal citizen? Would it be the same?
It would be exactly the same. Everyone would be treated equally.
Deputy Danny Healy-Rae is very welcome to join us. There is always a seat for him.
I will not stay long but I will be here a while anyway.