High Court dismisses appeal where minor summons errors do not mislead accused of charge substance.

Neutral Citation Number [2008] IEHC 375

THE HIGH COURT

2008 No. 832 SS

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857 AS EXTENDED BY SECTION 51 OF THE COURTS

(SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

(AT THE SUIT OF GARDA MARTIN O’BRIEN)

PROSECUTION/APPELLANT

AND

KEITH O’SULLIVAN

ACCUSED/RESPONDENT

Judgment of Mr. Justice Charleton delivered on 1st day of December, 2008

1. In State (Healy) v. Donoghue, [1976] 1 I.R. 235, Gannon J., in an oft quoted passage at p. 335, outlined that among the

entitlements of an accused person facing a criminal charge, was the right “to be adequately informed of the nature and substance of

the accusation…” This case, stated by Judge Joseph Mangan of the District Court in Clane, concerns that right. My view is that while

a person facing a criminal charge has an entitlement to know what he is being accused of, that this constitutional right does not

incorporate an entitlement to have the charge dismissed where trivial errors occur in its formulation, or where the summons giving him

notice of the hearing contains an error which is not misleading to a substantial degree. That right exists in order that the accused

may prepare to defend himself, or may decide not to contest the charge, because thereby he has become aware of the substance of

what he is being accused of. It is only a breach of that right which requires the charge to be dismissed. Were it otherwise, the

entitlement of the community to have criminal charges disposed of through a fair hearing would be diverted into nothing by means of

technical objections that do not bear any real relationship to the substance of the accused’s rights.

2. The accused was summoned to Ennis District Court to answer a charge that on the 3rd March 2005, at Quinn Road in Ennis, he

exceeded a special speed limit of 50 kilometres per hour. The only reason that he was summoned to Court was because he had not

paid the amount of the fixed charge levied on him through a fixed charge notice dated 3rd March 2005. Had he paid the amount

therein set out, there would have been no summons. Of course he was also entitled to decline to pay the fixed charge because he

wished to contest the charge.

3. The fixed charge notice is an elaborate document which identifies the relevant vehicle, the relevant place of the commission of the

offence, the relevant time, the relevant offence and states that paying a fine prior to court, will result in an endorsement of two

penalty points on the driving licence of the driver. Failing to pay will result in a prosecution being initiated, in which case the penalty

will be at the discretion of the court in accordance with the limit set out in the Road Traffic Act, 1961, s. 47, as amended, and on

conviction the number of penalty points imposed would double. The fixed charge notice also sets this out.

4. The accused did not pay and the case came to court. In argument on behalf of the accused, the defence solicitor contended that

there were 33 errors in the fixed charge notice. It was contended that because of these, the accused was put under no obligation in

law to pay the fixed penalty and, in consequence, the charge should be dismissed. The learned District Judge considered these points

and regarded the vast majority of them as “trivial and unsustainable”. Four of the points, however, commended themselves to his

attention. These were claimed to be a deviation from appropriate form, set out in the relevant statutory instrument, involving: the

failure of the Garda to sign the notice; the failure to put in a heading as to the amount of the fixed charge; the fact that an increase

of 50% in the fixed charge, if not paid within 28 days, went unstated; and absence of information that the payment should be

accompanied by the notice.

5. As a matter of fact: the name of the relevant Garda does appear, together with the somewhat indecipherable signature, but not in

a special box on the form; the notice specifies that if you pay the fixed charge within 28 days you are obliged to forward €80, or for

28 days after the expiry of that first period of 28 days, you have a further 28 days to pay €120, an increase of 50%; that fixed

charge sum is 50% greater, as a matter of fact; and the notice requires that the payer should fill out a declaration accompanying the

payment specifying his driving licence number, giving his signature and indicating his name and address and of the relevant date.

The Regulations

6. The relevant fixed charge provisions were introduced pursuant to s. 103 of the Road Traffic Act, 1961 on 23rd October, 2002.

Statutory Instrument 492 of 2002, the Road Traffic Act, 1961 s. 103 (Offences) Regulations 2002, contains a schedule helpfully

indicating the relevant form of fixed penalty notice, thus obviating the possibility of error. This indicates the relevant fixed charges

and the relevant fixed penalty points. This legislation was replaced by Statutory Instrument 322 of 2003, the Road Traffic Act, 1961

(s. 103) (Offences) Regulations 2003. However, the change was one of form rather than substance, in that the later regulations only

amended the earlier ones as to the fixed charge notice. The 2002 Regulations specified speeding as allowing for a fixed charge, but

the 2003 Regulations also included offences concerning safety belts, improperly securing underage persons and allowing children to

occupy a front seat. So, under the 2003 Regulation a tick has to be put against the appropriate wrong before the notice is sent out.

7. The only manner in which the notice actually received by this accused could in any way be argued not to be in conformity with the

precedent notice set out in the second schedule to the 2003 Regulations, is that a signature of the prosecuting Garda does not

legibly appear and that there is not a special box for his or her signature.

Law

8. Regulation 5 (3) of S.I. 492 of 2002 specifies:-

“The form of a notice set out in Part 3 of the [Schedule to these regulations], or a form substantially to the like effect is

prescribed for the purposes of the said subsection (6) where the notice is served pursuant to subs. (2)(b) of the said s.

103 [of the Road Traffic Act 1961, as amended].”

9. Regulation 5(1) also refers to the requirement to serve a notice of charge in a form as set out in the schedule to the regulations or

by a form “substantially to the like effect”. On the bringing into the effect of S.I. 322 of 2003, this requirement of substance over

form was not amended, only the wording of the relevant form.

10. I am satisfied that the absence of the signature of the prosecuting Garda does not make any substantial difference which would

require this summons to be dismissed. The law requires that the form should be substantially the same as the precedent set out in the

regulations. This indicates that the Minister framing the subsidiary legislation considered that should any issue arise, the court should

look to the substance of what the accused was being warned about, rather than making a charge depend upon a perfection in form

which is rarely present in human affairs. Minor errors of this kind are of no effect unless they can be shown to have confused the

accused. The purpose of a criminal prosecution is to try a wrong against society. If there is a substantial misleading of the accused,

so that for instance he comes to court expecting to meet a charge different to that on the summons, consideration should be given

to an application to strike out the charges. That is not the case here. In Attorney General (McDonald) v. Guiren, the respondent was

erroneously referred to by an incorrect Christian name. The Supreme Court, however, dismissed the charge on the basis that it was

inconceivable that he had been mislead; [1967] I.R. 417 at 422 and see D.P.P. v. McPartland, which concerns an incorrect address on

a summons, [1983] I.L.R.M. 411.

11. Under the substantial body of case law dealing with drunken driving, the Supreme Court has insisted, in two cases, that the court

should look to the substance of documents, reading these as a whole, rather than attempting to isolate errors without the relevant

context and to make a claim of confusion. Thus, in D.P.P. v. Collins, [1981] I.L.R.M. 447, the Supreme Court held that a certificate

was not rendered inadmissible in evidence by reason of a slip whereby a registered medical practitioner had left out his name,

although he signed the form. In D.P.P. v. Somers, [1999] 1 I.R. 115 the Supreme Court refused to have regard to an error, as to do

so would bring about a manifest injustice as far as the prosecution of the offence was concerned. The judgment of Henchy J. in the

Collins case asks whether a reader of the relevant form would realistically be misled into concluding that its nature was different by

reason of the error, or slip, or variation from that prescribed. That, its seems to me, is the test. Manifestly, there was no error of that

kind in this instance.

Result

12. I therefore answer the questions posed by the learned District Judge by stating:-

(1) The fixed charge notice served on the accused was in compliance with the substance of the form set out in S.I. 322

of 2003 and was therefore valid.

(2) An error in the form of a notice, certificate of evidence or summons does not render it invalid unless there is evidence

that a defendant has been mislead thereby so that he or she thinks it is different in substance to what it is.

(3) The summons should not have been dismissed.