No trespassing signs

Snugglebunnies

Does the recipient have to physically take the summons from the server in order to be served or can the server just throw it at their feet or whatever? Surely you can't make someone take hold of something anymore than you can make them sign for it? If you refused to sign could the case not go on without you anyway?

GM228

Snugglebunnies wrote: »

Does the recipient have to physically take the summons from the server in order to be served or can the server just throw it at their feet or whatever? Surely you can't make someone take hold of something anymore than you can make them sign for it? If you refused to sign could the case not go on without you anyway?

No, once they are satisfied you are present they can leave it with you by throwing it at your feet as you say or more likely by leaving it in the letter box.

Indeed nobody can force you to take, sign or even open and read something, but once it is left with you it is deemed good service.


This thread appears to have turned into a summons fact finding thread rather than a trespassing thread

123shooter

GM228 wrote: »

No, once they are satisfied you are present they can leave it with you by throwing it at your feet as you say or more likely by leaving it in the letter box.

Indeed nobody can force you to take, sign or even open and read something, but once it is left with you it is deemed good service.

So a gard needs good reason to stop and arrest you and evidence to convict you in court.

To serve a summons you need the word of one man who says all is well and ok and it was served correctly?

123shooter

GM228 wrote: »

This thread appears to have turned into a summons fact finding thread rather than a trespassing thread

No I have already given a comparison but it seems the summons server is tremendously powerful and his word of his actions accepted but the evidence of trespass of a person or persons on property which doesn't belong to them is not unless they smash a lock for access.

Snugglebunnies

123shooter wrote:

No I have already given a comparison but it seems the summons server is tremendously powerful and his word of his actions accepted but the evidence of trespass of a person or persons on property which doesn't belong to them is not unless they smash a lock for access.

It's mad isn't it? I thought trespass law would be a lot more clear cut, it seems anyone can come onto you're property and wander around as long as they're not absolutely destroying the place and wielding a chainsaw!

I'm surprised about summons servers tbh, like above they seem to have a lot of power and don't actually have to give any proof that their job is done expect say so. Its strange they don't have to give any evidence.

Its quite intimidating in itself, that if you're summonsed to court for some reason a stranger can enter your property despite signage not to do so and literally throw a summons at you! I assumed the default for sending a summons would be registered post.

123shooter

Snugglebunnies wrote: »

It's mad isn't it? I thought trespass law would be a lot more clear cut,

Yes totally and this another point I made earlier. It appears the law or some laws in Ireland are not made for the rights of the general public but more so to create extra work and activity for others. It appears they are deliberately grey instead of black & white. Not a really dark black and definitely not a bright white. More like several thousands of shades of grey whatever colour you think grey is.

Just like this post.

Who benefits?

GM228

It always surprises me when people give out about the laws in "Ireland", as they seem to believe that laws in other countries are far superior or better for the general public when in fact they obviously have no idea that laws (especially at common law level) are often very similar (and often "better" in Ireland) to nearly every other common law country in the world.

Trespass laws around the world are broadly similar to here. Common law decisions from around the world are often cited and given approval by Irish Courts in all avenues of law (including trespass). Our laws are usually shaped by decisions from other jurisdictions via common law or for example Law Reform reports based on other jurisdictions and then codified by statute.

Snugglebunnies

GM228 wrote: »

It always surprises me when people give out about the laws in "Ireland", as they seem to believe that laws in other countries are far superior or better for the general public when in fact they obviously have no idea that laws (especially at common law level) are often very similar (and often "better" in Ireland) to nearly every other common law country in the world.

Trespass laws around the world are broadly similar to here. Common law decisions from around the world are often cited and given approval by Irish Courts in all avenues of law (including trespass). Our laws are usually shaped by decisions from other jurisdictions via common law or for example Law Reform reports based on other jurisdictions and then codified by statute.

I don't know anything about these types of laws in general to comment on whether they're better or worse in Ireland than elsewhere. I didn't assume there would be a whole lot of difference between countries on this, except maybe the USA where you'd probably be shot for putting your foot inside someones front garden. :P

123shooter

GM228 wrote: »

It always surprises me when people give out about the laws in "Ireland", as they seem to believe that laws in other countries are far superior or better for the general public when in fact they obviously have no idea that laws (especially at common law level) are often very similar (and often "better" in Ireland) to nearly every other common law country in the world.

Trespass laws around the world are broadly similar to here. Common law decisions from around the world are often cited and given approval by Irish Courts in all avenues of law (including trespass). Our laws are usually shaped by decisions from other jurisdictions via common law or for example Law Reform reports based on other jurisdictions and then codified by statute.

Hey now hold on that's a twist of my words.

Actually I should imagine it's same everywhere.

I do have a little dealings in trying to sort out and understand a law in Ireland, made in Ireland and not applicable in the UK. I have no understanding of why ever it was bought in and it was I have to admit fascicle with no one knowing the definition of what was actually by law illegal.

GM228

123shooter wrote: »

Hey now hold on that's a twist of my words.

Apologies, to clarify it's not meant to be a twist of your words or aimed at any poster in particular, rather a general post regarding the issue of comparable law which often needs to be pointed out, especially when omments such as the "law in Ireland" are made (not just in this thread but often in many threads especially when posters don't know the law they speak of) which suggests laws in other countries may be the opposite (better) to whatever is being stated.

4ensic15

GM228 wrote: »

Because they must be served via personal service, a summons via post can't be used for the majority of criminal proceedings (those initiated by Gardaí, Revenue etc) without a court order allowing for such. Postal summons can only be ordinarily used for criminal proceedings initiated by the likes of CIE, Transdev, An Post etc.

It would be easier for the wrong person to get/sign the summons via post. The whole point of personal service is to minimise the defence of "I didn't get any summons".





Can you imagine the amount of unsigned documents (and ultimately deemed unserved) if those served were required to sign for them!

Summons do not have to be personally served in criminal cases. the vast majority are served by ordinary post. practically all road traffic summons are served by ordinary post. The reason registered post is not used is because of the cost.

GM228

4ensic15 wrote: »

Summons do not have to be personally served in criminal cases. the vast majority are served by ordinary post. practically all road traffic summons are served by ordinary post. The reason registered post is not used is because of the cost.

I edited the previous post as I was talking about ordinary post which shouldn't be used.

But most are not sent via ordinary post, most are hand served. It is not lawful to serve via standard post, only registered post - but it's rarely used as hand delivery is the preferred method and current policy.

There have been issues with the use of ordinary post in the past, GSOC highlighted it in 2009 and HH Judge Miriam Malone (President of the District Court) acknowledged this. I am also aware of AG advice to AGS confirming such.

4ensic15

GM228 wrote: »

I edited the previous post as I was talking about ordinary post which shouldn't be used.

But most are not sent via ordinary post, most are hand served. It is not lawful to serve via standard post, only registered post - but it's rarely used as hand delivery is the preferred method and current policy.

There have been issues with the use of ordinary post in the past, GSOC highlighted it in 2009 and HH Judge Miriam Malone (President of the District Court) acknowledged this. I am also aware of AG advice to AGS confirming such.

What law prevents the use of ordinary post? The vast majority of summons are served by ordinary post. Judges grumble about it not being reliable but it continues, because of the overhead of doing it any other way. . If the judge has a doubt in a particular case they can direct personal service. the default in road Traffic cases is ordinary post. Most people turn up so that saves the effort of other methods is not incurred.

GM228

4ensic15 wrote: »

What law prevents the use of ordinary post?

Look at the Courts Act 1991 S22 which only allows for service personally or via registered post (or other form of recorded delivery post).

Gardaí must by law use a method authorised by statute which is as per S22 - even S7 of the Courts Act 1964 has the same provisions meaning technically even CIE etc should be using registered post as opposed to ordinary post.

22.—(1) Notwithstanding section 12 of the Act of 1851 and without prejudice to the provisions of any Act authorising the service of summonses in any particular manner in particular cases, a summons issued in a case of summary jurisdiction under section 11 (2) or 13 of the Act of 1851 or section 1 of the Act of 1986 may be served upon the person to whom it is directed—

(a) by sending, by registered prepaid post, a copy thereof in an envelope addressed to him at his last known residence or most usual place of abode or at his place of business in the State,

(b) by sending, by any other system of recorded delivery prepaid post specified in rules of court, a copy thereof in such an envelope as aforesaid, or

(c) by delivery by hand, by a person other than the person on whose behalf it purports to be issued authorised in that behalf by rules of court, of a copy thereof in such an envelope as aforesaid.

(a) and (b) are basically the same in that a record of delivery is created and (c) is personal service. They are the three options.

Ordinary post or even Ceadúnus is not permitted via statute, to do so is unlawful as it is not conforming to or recognised by law. The only way ordinary post (or any other method not above) is via Substituted Service which requires a court order.

Currently all summons are sent to the local Garda district office for processing and then sent to individual stations to be issued to Gardaí (other than the member instituting the proceedings) to serve - if they are then sticking them in the post which you suggest they are not conforming to requirements of the law in relation to service of a summons.

4ensic15 wrote: »

The vast majority of summons are served by ordinary post.

So why is there roughly 30,000 per annum unserved summons?

4ensic15 wrote: »

the default in road Traffic cases is ordinary post.

The default in criminal cases is via personal or registered post (as I stated previously personal service is the preferred manner by Gardaí), ordinary post can only be afforded via Substituted Service.

4ensic15 wrote: »

Most people turn up so that saves the effort of other methods is not incurred.

Irrespective of how the summons is served this is the important point, once a person turns up, an incorrectly served notice does not remove jurisdiction of a court to hear a complaint so as you say it saves effort, but the bottom line is sending a summons via ordinary post is the incorrect procedure and not recognised under law.

However if someone is sent a summons via ordinary post and convicted out of court, they could potentially have the conviction set aside on application to the District Court if they didn't receive it - if sent via ordinary post the state can't prove it was served.

4ensic15

GM228 wrote: »

Look at the Courts Act 1991 S22 which only allows for service personally or via registered post (or other form of recorded delivery post).

Gardaí must by law use a method authorised by statute which is as per S22 - even S7 of the Courts Act 1964 has the same provisions meaning technically even CIE etc should be using registered post as opposed to ordinary post.



(a) and (b) are basically the same in that a record of delivery is created and (c) is personal service. They are the three options.

Ordinary post or even Ceadúnus is not permitted via statute, to do so is unlawful as it is not conforming to or recognised by law. The only way ordinary post (or any other method not above) is via Substituted Service which requires a court order.

Currently all summons are sent to the local Garda district office for processing and then sent to individual stations to be issued to Gardaí (other than the member instituting the proceedings) to serve - if they are then sticking them in the post which you suggest they are not conforming to requirements of the law in relation to service of a summons.





So why is there roughly 30,000 per annum unserved summons?





The default in criminal cases is via personal or registered post (as I stated previously personal service is the preferred manner by Gardaí), ordinary post can only be afforded via Substituted Service.





Irrespective of how the summons is served this is the important point, once a person turns up, an incorrectly served notice does not remove jurisdiction of a court to hear a complaint so as you say it saves effort, but the bottom line is sending a summons via ordinary post is the incorrect procedure and not recognised under law.

However if someone is sent a summons via ordinary post and convicted out of court, they could potentially have the conviction set aside on application to the District Court if they didn't receive it - if sent via ordinary post the state can't prove it was served.

The state can't prove a summons was served by registered post either. The signature at the address can't be verified. All that can be proven is that it was delivered to a particular address. In most cases where the judge has a doubt about service a bench warrant or an order for personal service will be made. That is why there are so many unserved summonses. Guards do not go around looking for people who are alleged to have incurred I have yet to see a guard in a post office registering post.

GM228

4ensic15 wrote: »

The state can't prove a summons was served by registered post either. The signature at the address can't be verified. All that can be proven is that it was delivered to a particular address.

This may be true, however statute allows the Statutory declaration to be prima facia evidence of proof of service.

4ensic15 wrote: »

In most cases where the judge has a doubt about service a bench warrant or an order for personal service will be made.

Eh, no.

A bench warrant can't be issued unless it is proved to the judge that the summons was served. If the judge has a doubt then it isn't proved it was served and a bench warrant can't issue.

A judge can only direct personal service (or whatever service he/she sees fit) when issuing a "Notice Of Adjourned Hearing", again this can only happen when the accused has been served so if there is a doubt then it hasn't been proved the summons was served and the court can't consider the accused served - as such the court has no jurisdiction in the matter and it must be struck out not served.

4ensic15 wrote: »

That is why there are so many unserved summonses. Guards do not go around looking for people who are alleged to have incurred I have yet to see a guard in a post office registering post.

I have yet to see a Guard in a post office buying stamps or playing with a franking machine also

Peregrinus

123shooter wrote: »

Yes totally and this another point I made earlier. It appears the law or some laws in Ireland are not made for the rights of the general public but more so to create extra work and activity for others. It appears they are deliberately grey instead of black & white. Not a really dark black and definitely not a bright white. More like several thousands of shades of grey whatever colour you think grey is.

Just like this post.

Who benefits?

Taxpayers benefit.

As GM228 point out, at common law trespass is not crime. It never has been.

Basically, 99% of trespass situations involve a dispute between two people over which of them has the superior right to use/occupy/be on/exclude people from a particular area of land, and how much either of them will suffer if their rights in this regard are not respected. Obviously, disputes of this kind are of interest to the two people involved, but they're of no great interest to the community at large. So, we don't deal with them through the criminal law. This is what we have civil law for, people; so that individuals can sort out their private disputes without embroiling the rest of us in them. Why should the rest of us care about the trivial reduction in grazing amenity that comes from someone walking on the grass, and why should we be involved in determining whether or not he is entitled to walk on the grass? Let the person doing the walking and the person whose grazing amenity is diminished by this sort it out between themselves. If they can't sort it out unaided, let them pay for their own lawyers to sort it out in the courts.

Trespass only becomes a criminal matter where there are additional factors that do concern the rest of the community - there is violence involved, or there is significant damage to property involved, or the trespass is ancillary to or preparatory for some other crime, or the trespass involves someone being excluded from their own land, or whatever.

The notion that this is to "create extra work and activity for others" is patently ridiculous. The whole point of this approach is to minimise the number of trespass cases in which there is work for "others" - the guards, the courts, the prisons, the probation service.

There's a significant community interest in making sure that you're not burgled or turned out of your own home. There's no significant interest in making sure that nobody walks on your grass. This shouldn't be that difficult a point to grasp.

worded

Snugglebunnies wrote: »

So its not trespass as long as they are providing something to the home owner?
What about door to door salesmen or Jehovah's witnesses etc.? Most people don't want them turning up at the door, they are not providing anything in your view, that would warrant them to be on your property.

Sorry for all the questions, I'm just genuinely curious as to when its OK for someone to enter your property and when its not. Do they have to be there to do something that's of benefit to the property owner?

The topic just came up in conversation at work is all!

Snip: Offensive joke.