Speeding farce to hit Minister Brennan

Villain

Just read the cover story in Ireland on Sunday which reports:

That a loop hole in the law could mean people who detected speeding by Gardai using Radar Guns can challenge their case in court because by law they are entitled to a printout from the gun.

Section 25(2) of the Road Traffic Act 2002 repealed section 105 of the 1961 act, it came into affect On June 1st 2003. The new ammendment says that for a successful prosecution a speed measuring device has to issue documentary evidence of teh affending speed and a copy of this documet has to be "furnished to the accused person before the commencement of the trial of teh offence"

But te Garda-held radar gun is INCAPABLE of producing a permanent record of the speed of the vehicle.

Section 21 of the 2002 Road Traffic Act goes on to state:
"the uncorroborated evidence of one witness stating his opinion as to...speed shall not not be accepted as proof of that speed"

2 cases of this have already arisen.

Case1: John McGovern appeared before Cork District Court judge Con O'Leary on March 3 last, charged under the section 47 of the Road Traffic Act 1961 with driving at 80mph in a 60mph zone.

He had been clocked by Garda Tp Hooley on the mallow road, COrk on June 5 last year and a summons had been issued in te normal way.

But Instead of meekly pleading guilty an daccepting his fine and penalty points, Mr McGovern argued he should have been given a record of his speed at the time to allow him to prepare his defence. Judge O'Leary agreed and warning that all proosecutions brought using a radar gun were equally flawed,dismissed the case "because the apparatus doesn't produce any permanent record or simultaneous print-out of the speed"

Case2: Solicitor Barry McCarthy of Dun Laoghaire represented himslef when he appeared before Judge Michael Pattwell two weeks ago, charged with doing 73mph in a 50mph zone.

Asking for the case to be dismissed he said he was stopped by Garda Martin Healy about 2 miles beyond Glocca Maura Inn in Co. Cork.

"He issued me with a fixed notice but I was never given a copy of the reading from the electronic apparatus" McCarthy told the Judge.

"He has to produce a record and he didn't. It's my contention that I must be furnished with a copy of that reading" he added.

Stating that he would have to consider the facts put to the court, Judge Patwell adjourned ruling on the case until July 2.

The articel also stated that

"The Garda represntive Association has claimed that more than 20,000 motorists are waiting to have their licences endorsed with points because the scheme is not computerised"!!!

Above is only my adaptation of the article, sorry I couldn't include the whole article but its quite lengthy and my typing speed isn't that high.

I can't believe such a loophole has comeabout from legislation that only came into affect in June of last year, the Minister will have to try and sort this one out, but the paper reports that it will take time to get the loophole fixed with the summer recess in the Dail coming shortly.

Another Government cockup.:rolleyes:

daveirl

This post has been deleted.

Villain

Done a bit of digging, I think this is what there referring to http://www.irishstatutebook.ie/ZZA12Y2002S21.html

The Muppet

Its a poor reflection on the minister and his legal advisers if he let that ammendment to the 1961 act onto the statute books knowing that the equiptment the Gardai use does not produce documentary evidence (assuming it doesn't). It could only happen in Ireland.

Rock Climber

Originally posted by irish1

I can't believe such a loophole has comeabout from legislation that only came into affect in June of last year, the Minister will have to try and sort this one out, but the paper reports that it will take time to get the loophole fixed with the summer recess in the Dail coming shortly.

Another Government cockup.:rolleyes:

Hmmm,
Or an opposition cock up aswell for not pointing out or discovering this loophole when the legislation was going through the Oireachtas...
They are not doing their job properly either it could be said.

But having said that, theres no accounting for the cleverness of barristers and lawers for finding the loopholes in any legislation, It is a contact sport for them for which they get highly paid..but at least when they are found they can be closed.

Villain

Originally posted by Rock Climber
Hmmm,
Or an opposition cock up aswell for not pointing out or discovering this loophole when the legislation was going through the Oireachtas...
They are not doing their job properly either it could be said.

But having said that, theres no accounting for the cleverness of barristers and lawers for finding the loopholes in any legislation, It is a contact sport for them for which they get highly paid..but at least when they are found they can be closed.

Well you could blaim the opposition as well, but it was the government that drafted the legislation so I think the book should stop at their door.

sceptre

Originally posted by irish1
Done a bit of digging, I think this is what there referring to http://www.irishstatutebook.ie/ZZA12Y2002S21.html

That's some nice digging there irish1, I believe you're right. Fact of the matter is that this government has createdso much cock-arsed legislation that it's scary. It's almost as though they're going out of their way to make things difficult or impossible for themselves at times. And I'm saying this necessarily as a swipe against FF or the PDs, it's as much the fault of the people who are drafting and checking this stuff as anyone else. Oh and as Rock Climber said, falls in the lap of the opposition as well as chances are good that they're not reading half of the legislation being proposed (and that's their job too). However, ultimate responsibility for legislation has to fall in the lap of the person introducing it. If that was the minature Minister then it's his fault (again).

Victor

Doh! You'd think there was an election coming up or something with this ticket amensty happening.

http://home.eircom.net/content/unison/national/3300622?view=Eircomnet

Poorly-worded tickets could let speeding drivers off hook
From:The Irish Independent
Monday, 31st May, 2004

TRANSPORT Minister Seamus Brennan is to seek advice from the Attorney General about the legality of speeding tickets after it emerged the wording on the tickets could allow motorists off the hook.

Thousands of motorists could avoid penalty points on their licence because tickets handed out by gardai are poorly designed and fail to refer to the correct legislation.

The latest problem with road traffic legislation comes after it emerged last week that hundreds of motorists convicted of drink driving have been availing of a legal mechanism to get back on the road long before their ban runs out.

Many have served just half of their driving ban before applying to the courts for the restoration of their licence on the basis there was a pressing need for its return.

There are also problems with prosecuting speeding cases involving detection by hand-held radar guns, because gardai are unable to provide defendants with a paper printout detailing the detection. Last week, two district court judges struck out cases in Dublin because of faulty speeding tickets, and it is now feared that thousands of other motorists will avoid points because of the errors.

Among the problems identified in the latest case are that speeding tickets refer to the 1961 Road Traffic Act, but not the 2001 Act which allows for the imposition of penalty points. Failure to cite the Act means no points can be imposed.

Another problem is that section 47 of a road traffic act is referred to, without specifying the particular act, leaving motorists unaware of what offence they are being charged with.

The tickets also fail to note if the speed recorded is in miles or kilometres. If the latter, motorists could be driving within the speed limit.

Yesterday, a spokesman for the minister said the department was aware of the problem, and the AG's advice would be sought. If a loophole existed it could be amended in the Road Traffic Bill, due to come before the cabinet in the coming weeks. The new law will make driving while using a mobile phone an offence.

He added that the legality of the road traffic acts was constantly being tested in the courts, and that last week's decisions were a matter of interpretation. It might prove that a case to the High Court would be necessary to determine the act was legal.

"We've asked the Attorney General for advice in these cases," he said. "The district justices are interpreting the law differently from how everybody else has been. It's really a case for an appeal to a higher court, which will clear up the issue.

"The AG may say we need an amendment which can be tacked onto the Road Traffic Bill, but this kind of mirrors what's happening in the drink-driving cases. What we do all depends on the legal advice.

"Everybody tries to find their way around it, and it constantly happens that people challenge the road traffic acts."

Paul Melia

Villain

Looks like the sh*t is going to hit the fan!
From The Irish Independent:
Speed kings go free in radar gun crux
Helen O’Callaghan and Davina Hickey

THOUSANDS of speeding charges countrywide could be thrown out of court after decisions by two Cork judges.

On March 3 this year, Judge Con O’Leary dismissed a prosecution against a Dublin man charged with driving at 80 miles an hour in a 60-mile zone at Mallow Road, Cork, on June 5, 2003, where the speed had been measured by a ‘radar gun’, an apparatus that doesn’t produce any permanent record or simultaneous print-out of the speed.

And at Mitchelstown District Court last week, the legality of the ‘radar gun’ was again challenged by a Dublin based solicitor, who was allegedly clocked travelling at 73mph in a 50mph zone.

Representing himself, Barry McCarthy of 8 Eaglewood, Rochestown Avenue, Dun Laoghaire said he was stopped by Garda Martin Healy about two miles beyond the Glocca Maura Inn.

“He issued me with a fixed notice but I was never given a copy of the reading from the electronic apparatus,” Mr McCarthy told Judge Michael Pattwell.

Questioned by Inspector Senan Ryan as to whether he had sought to see the speed reading, Mr McCarthy replied that he was issued with a ticket but had not asked the garda for anything else. “He has to produce a record and he didn’t. It’s my contention that I must be furnished with a copy of that reading,” he added.

Acknowledging that this defence has already been used in other Cork courts, Inspector Ryan said he understood what the defendant was saying and the challenges were such that the issue had been taken up by their law advisors..

Stating that he would have to consider the facts put to the court, Judge Pattwell adjourned ruling on the case until July 2.

In a statement issued to The Corkman this week by Judge O’Leary, in which he sets out his reasons for dismissing the speeding charge on March 3, the judge explained that a ‘radar gun’ uses laser technology rather than radar to show – on a screen – numbers purporting to be the speed of an approaching or receding vehicle.

But, he added: “no ordinary guard can explain in court the physics which cause the numbers to appear nor why they should be relied on as accurate” – a difficulty for the Prosecution that, until last June, was very significantly reduced by Section 105 of the 1961 Road Traffic Act.

“This meant that a sufficiently expert witness might be able to challenge the efficacy or accuracy of the apparatus (radar gun) but, until someone could show otherwise, the evidence of the guard regarding the reading (if believed) would suffice for a conviction,” explained Judge O’Leary.

However, things ceased to be so easy for the prosecution when Section 25(2) of the Road Traffic Act 2002 – which repealed Section 105 of the 1961 Act – came into effect on June 1, 2003.

The effect of the new amendment is that, for a successful prosecution, a speed-measuring apparatus now has to issue documentary evidence of the offending speed and that a copy of this document has to be ‘furnished to the accused person before the commencement of the trial of the offence’.

This is where the problems start because, as was pointed out by the prosecution during the Blarney District Court case, the Garda-held ‘radar gun’ is incapable of producing a permanent record of the speed of a vehicle.

Section 21 of the 2002 Road Traffic Act goes on to state that ‘the uncorroborated evidence of one witness stating his opinion as to... speed shall not be accepted as proof of that speed’.

Concluding his statement containing his reasons for dismissing the case, Judge O’Leary said: “I believe that this means that the presumptions of efficacy and accuracy of the apparatuses, which include car speedometers, is now effective only where the apparatus produces a ‘record’, as required by the Act, of the reading, which is then served on the defendant in accordance with the terms of the section.

“Accordingly, all speeding prosecutions, where neither expert evidence is available nor ‘record’ produced and served, must fail.”

Inspector Peter Callanan, Traffic Inspector with the Traffic Unit at Anglesea Street Station, says “well in excess of 1,000 speeding charges” detected with the use of the ‘radar gun’ have been made in his jurisdiction since June 1, 2003.

And the latest figures from the Garda Traffic Bureau show that 246,196 speeding notices were issued by Gardai in 2002 – in 76% of these cases fines were paid but at the end of 2002 court proceedings were pending in respect of 8,517 cases.

Most of these are likely to be as a result of radar gun detections.

Commenting on further implications of the amended law and of Judge O’Leary’s ruling in the matter, another Garda source said: “As I see it, there are two implications. One – that the hand-held ‘radar gun’ will become redundant as a method of detecting speed.

“This also means that penalty points will not be an issue for the offender if a prosecution isn’t brought.

“The second implication is that the Department of Transport may issue amending legislation ... then we’re back on track.”

Inspector Callanan says Gardai must now seek advice from the DPP or the Attorney General on the matter.


This speeding detection crux comes on top of a similar problem with drink-driving charges, where, last month, Judge Patwell dismissed a raft of prosecutions because he wasn’t satisfied with ‘intoxilyser’ evidence garnered at the roadside by Gardai.

bonkey

irish1 wrote:

Well you could blaim the opposition as well, but it was the government that drafted the legislation so I think the book should stop at their door.

The government should carry responsibility for the screwup, yes, but its nothing something that the opposition want to try lauding over them.

But gosh...another legislative cock-up by the government....this whole "not spotting glaring loopholes" seems to be becoming a trend....

jc

Boggle

If someone claims to have caught me speeding then I'd rather they have to have proof instead of just their word regarding what they saw on a gun that may or may not be reading a glitch. A printout should have the distance travelled, the max, min and average speeds travelled to allow for reflections, glitches and any other fault with these guns that we may not be aware of because people are afraid to try and defend themselves in court......

...you could also argue that they should have a secondary measurement system incase the primary goes wrong to safeguard against wrongful conviction....

....you could also argue that all they're interested in doing is going back to making money....

... you could also argue that...............(enough already!!)

Villain

I think we'l see a lot of speeding fines being contested from now on, I mean the legislation which I have linked to in an earlier post clearly states:

(3) The electronic or other apparatus referred to in subsection
(1) shall—
(a) be capable of producing a photograph or other record of the measurements or other indications referred to in that subsection.

......
(4) In proceedings for an offence referred to in subsection (1), if proof of the offence involves proof of the speed at which a person (whether the accused or another person) was driving, the uncorroborated evidence of one witness stating his opinion as to that speed shall not be accepted as proof of that speed.

Sparks

I wonder if the amount you'd save in ticket fines would make the cost of the soliciter and barrister worth it?

Stark

Well the losing party usually pays the legal fees so you'd probably end up not paying anything.

Sparks

Does that include the initial soliciter's fees though? I was under the impression it related to the barristers' fee and the court fees only for some reason.

Villain

Sparks wrote:

Does that include the initial soliciter's fees though? I was under the impression it related to the barristers' fee and the court fees only for some reason.

Would you need a soliciter??

I think you could represent yourself as knowledge of the legislation would suffice. Also if you already had a few penalty points it could be worth the money i.e pay legal fees now rather than pay the insurance company later.

Sparks

Irish, you know the saying about the man who acts as his own lawyer - I think it applies here as well!

Villain

Sparks wrote:

Irish, you know the saying about the man who acts as his own lawyer - I think it applies here as well!

has a fool for a client!!!

In my case Sparks that would probably be true

por

Boggle wrote:

If someone claims to have caught me speeding then I'd rather they have to have proof instead of just their word regarding what they saw on a gun

I was in a taxi that was stopped on the Quays in Dublin last year, the Garda showed the driver the reading on the gun and then proceeded to write the ticket.

Boggle

Have never even looked at a gun but does the reading give the exact time and date of the reading along with the current time so that he can verify it was you?

How do you know he didn't snap someone else a few mins earlier?
(i expect its a stupid question but I'll ask anyway)

jbkenn

Boggle wrote:

Have never even looked at a gun but does the reading give the exact time and date of the reading along with the current time so that he can verify it was you?

How do you know he didn't snap someone else a few mins earlier?
(i expect its a stupid question but I'll ask anyway)

It just displays the speed.

jbkenn

Villain

This story is back in the news again, with 9 people getting off in another court. The Gardai tried to cliam that by recording the speed on the written ticket they were providing a Record however the Judge disagreed and dismissed the 9 cases.

The legislation clearly states

(3) The electronic or other apparatus referred to in subsection (1) shall—

(a) be capable of producing a photograph or other record of the measurements or other indications referred to in that subsection,

90% of the Guns the Gardai use do not provide such, this is a major loop hole and its about time the Government did something. But perhaps the new Minister for Transport Mr Cullen will let his very well paid PR person look after it, did you know she receives more in pay than the whole of Berties PR team!!!