A test challenge to the legal adequacy of a fixed-charge notice (FCN) issued over alleged speeding in an average speed zone has been rejected by the High Court.
The decision has adverse implications for more than 2,000 drivers who were allegedly caught speeding in an average speed zone on the M7 motorway.
Ms Justice Miriam O’Regan, in a judgment on Wednesday, determined the key legal issues in Edel O’Brien’s test case in favour of the Director of Public Prosecutions, represented by barrister David Staunton.
The case concerned a FCN issued to Ms O’Brien, of Springhill Avenue, Deansgrange, Co Dublin, who is alleged to have driven at 131km/h on the M7 at Birdhill (west), where a 120km/h limit applies, on September 7th, 2022.
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A core issue was whether the absence of the word “average” from FCNs, when issued for alleged speeding in an average speed zone, makes them so defective that a conviction cannot be registered on foot of them.
About 900 other cases stand adjourned, and 1,500 summonses for alleged speeding in an average speed zone have yet to issue, pending the outcome of the High Court decision on legal issues referred by District Court Judge Miriam Walsh arising from Ms O’Brien’s case.
Average speed cameras record vehicles at two distinct points a set distance apart, allowing for its speed to be calculated over a longer distance than a single static camera.
The system was first introduced in Ireland in 2017 at the Dublin Port Tunnel. It was introduced on the M7 between junction 26 Nenagh and junction 27 Birdhill in April 2022. It sits alongside the statutory regime for prosecuting speeding offences under the Road Traffic Acts.
A driver must be served with a FCN alleging the commission of a speeding offence on a particular date and at particular location, irrespective of how the speed has been detected, before a prosecution can be taken.
After Ms O’Brien was served with her FCN, she contacted the Garda processing office querying the content of the FCN and said she was told, for the first time, the allegation related to a recorded average speed over a 9km distance.
When she did not pay the notice, she was summonsed to appear before Nenagh District Court in March of last year.
In sending legal issues to be determined by the High Court, Judge Walsh said Ms O’Brien, representing herself, had pleaded guilty and accepted she had been speeding in excess of the 120km/h limit, but she raised an issue about FCN not referring to the word “average” with reference to the 131km/h speed alleged.
Ms O’Brien argued the FCN materially misstated the particulars of the allegation, which was that her car was driven at an average speed of 131km/h over a distance of 9km, in excess of the permitted limit.
The FCN, she claimed, contained misstatements likely to prejudice her in deciding whether to pay or contest the matter. She would have paid the notice had it accurately set out her alleged speeding offence, she contended.
In her judgment, Ms Justice O’Regan found the FCN had been duly served and the error in the form of it did not render it invalid unless Ms O’Brien was misled by it.
Given the lack of evidence to that effect, the judge found the FCN complied with the regulations and statutory provisions. She further held any perceived error could be dealt with under the Interpretation Act.
The fact Ms O’Brien later became aware it was an average speed of 131km/h at a time she could still accept and pay the FCN was relevant to whether or not she had been afforded adequate information on the allegation against her and in dealing with any prejudice asserted, the judge held.
The variation between the complaint and the evidence adduced in support of it therefore did not affect the court’s entitlement to record a conviction, she ruled.
