Friday 27 April 2018

Photo should be supplied with speeding summons, driver asks court

Photo should be supplied with speeding summons, driver asks court
Photo should be supplied with speeding summons, driver asks court

THE High Court has been asked to rule whether gardai must provide a photograph of a car when they summons its driver to the District Court for speeding.

In a case which will affect a large number of similar speeding offences, president of the High Court Mr Justice Nicholas Kearns said he hoped to give his decision by the end of the month.

The matter was before him by way of consultative case stated from District Judge Mary Devins who asked the High Court to decide whether the law requires a driver must be served with photographic evidence when the summons is also being served on the driver to attend court.

This is after he or she has failed to pay the fixed charge speeding penalty whereby they can avoid having to go to court.

Judge Devins also wants the High Court to decide whether the District Court should first also be supplied with a copy of the contract between the Minister for Justice and a private company under which part of the speed detector van operations were outsourced by the State.

She wants a ruling on whether it is sufficient that evidence be given of the existence of that contract between the Minister and the "Go Safe" company, which operates speed vans, or that a full copy of it should be handed into court.

She has further asked the High Court to decide whether the court should consider whether a photographic image of the alleged speeding vehicle could have been tarnished by virtue of computerised enhancement process to identify number plates.

The case arises out of a speeding summons brought against Michael Gilvarry, Ratheen, Killalla, Co Mayo, when a Go Safe van recorded him allegedly doing 93km in an 80km per hour zone in Ballina on October 30, 2011.

Paul McGarry SC, for Mr McGilvarry, said arising out of submissions made to Judge Devins at the District Court hearing, she had agreed to state a case to the High Court on three questions.

The first related to Section 81.3 of the 2010 Road Traffic Act which requires that a copy of any electronic record of the alleged speeding must be served on an accused person before their trial.

The only record in this case was the photo of the car and there was no evidence that it had been served on his client, Mr McGarry said.

In relation to the issue of evidence about the Go Safe/Department of Justice contract, there was no presumption of the existence of such a contract and it should be proved before the court in the normal way.

On the question of enhancement of the photograph, Mr McGarry said the image is uploaded to a server in the Go Safe van before it is sent to the firm's base in Listowel, Kerry, and also on to Garda Headquarters in the Phoenix Park in Dublin and to the garda fixed charge processing office in Thurles, Tipperary.

It is also sent sent on to the local gardai who serve the summons for the driver/owner to attend court. The onus was on the prosecution to show it had not gone through any changes during that process, Mr McGarry said.

Paul Anthony McDermott BL, for the DPP, said the requirement that photographic evidence be provided in advance of the trial was simply a normal pre-trial disclosure order.  It was open to the defendant to seek an adjournment so he could be supplied with the photo, but it was not sought in this case.

It was sufficient in speeding cases that there is prima facie (on the face of it) evidence of the offence whereby it had been established that the car involved was owned by the person before the court and that the speed was recorded, he said.

It was open to Mr Gilvarry to say he had never got a photo of his car but he had not done so.   He could also have called witnesses to prove it was not him or cross-examined prosecution witnesses but he had not done this either.

Mr McDermott said it was not a necessary ingredient to prove speeding that the prosecution must show the existence of the Go Safe/Department

of Justice contract. The enhancement of the photograph was merely blowing it up in size to show the registration number of the car, he added.

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