Archive for July, 2014

The Court Poor Box – A luxury of the past?

Tuesday, July 29th, 2014

The concept of a Court Poor Box has been a longstanding tradition in Irish District Courts. It affords a defendant an opportunity to avoid a criminal conviction for minor offences by making a charitable donation.

Mr Justice Hogan, in the recent judicial review case of Kennedy v Gibbons, 2014 IEHC 67, described the Court Poor Box as being of:

“obscure and uncertain origins, the existence of the poor box jurisdiction is of such long standing and is so widespread and inveterate, that it must be considered now to be part of the common law which was adopted by Article 50.1 following the coming into force of the Constitution on 29th December, 1937.”

 The system is to be overhauled however, as the Department of Justice, Defence and Equality has issued a General Scheme for the Criminal Justice (Community Sanctions) Bill 2014 which was submitted to the Joint Committee on Justice, Defence and Equality. The proposed bill would abolish the Court Poor Box system and replace it with a statutory Reparation Fund for minor offences. The monies generated by the fund would go towards the provision of services and compensation for the victims of crime. The Joint Committee published a Report on 5 June 2014 which appears to welcome the introduction of the fund as a fairer way of distributing money for the compensation, reparation and assistance of victims. The matter is now with the Houses of the Oireachtas for consideration.

Road Traffic Offences

The Court Poor Box has not been an option for defendants guilty of certain road traffic offences since 1 June 2011. Section 55 of the Road Traffic Act 2010 provides that the Probation of Offenders Act 1907 does not apply to a penalty point offence, therefore where a defendant is guilty of a road traffic offence which carries with it the mandatory imposition of penalty points, he/she cannot avoid a formal conviction. The Court Poor Box option continued to be employed by some District Courts for some time following the enactment of this section, however Mr Justice Hogan clarified the position in Kennedy v Gibbons and found that the Road Traffic Act 2010 superseded the traditional informal Court Poor Box sanction and it can therefore no longer be availed for these road traffic matters.

In summary, a defendant guilty of a Road Traffic Offence which carries with it mandatory penalty points can no longer avail of the Court Poor Box as an alternative to formal conviction and will receive the relevant penalty points and fine as provided for in the legislation. In relation to other minor offences, an overhaul of the system is on the horizon and the Court Poor Box may soon be considered a luxury of the past.

Should you have any queries in relation to any of the above please do not hesitate to contact Máirín O’Boyle-Finnegan or your usual contact in Partners at Law.

 

July 2014

Using your mobile phone while driving – What is the law?

Thursday, July 17th, 2014

Section 3 of the Road Traffic Act 2006 made it an offence to hold a mobile phone while driving. This is a fixed charge offence of €60 (€90 if not paid within 28 days) plus 2 penalty points (4 if convicted).

What is a mobile phone?

The definition of mobile phone is a portable communication device, other than a two-way radio, with which a person is capable of making or receiving a call or performing an interactive communication function. This could therefore technically refer to an iPad or tablet also.

An ‘interactive communication function’ includes sending or receiving oral or written messages, faxes, still or moving images, or providing access to the internet.

Holding a mobile phone

To hold a mobile phone actually means not only holding the phone by hand, but also supporting or cradling it with another part of the body. So resting your mobile phone on your lap while on ‘speaker’ is in fact included in the offence.

New regulations

The loophole that existed was the ability to send text messages while your phone was in a cradle or hands-free device. This loophole has now been closed as of 1 May 2014 with a new offence of sending or reading a text message from a mobile phone while driving. A text message includes SMS, MMS and emails.

To read a text message means to access or open it, other than by voice-activation. To send a text message includes composing and typing, but does not include anything done without touching the mobile phone. Therefore reading or sending text messages solely by voice commands is technically not an offence under these regulations, however one would always need to be mindful of other offences, including careless driving.

The current penalty is a mandatory court appearance where a judge will decide what financial penalty the motorist should face. If convicted, the judge can fine the motorist a maximum of:
• €1,000 for a first offence
• €2,000 for a second or subsequent offence
• €2,000 and/or up to three months in prison for a third or subsequent offence within a twelve month period.

Current position

The Department of Transport, Tourism and Sport has published an Information Note which clarifies that the new regulations apply to mobile phones which are not being held. Therefore if you are holding a mobile phone while driving, to include cradling or supporting it by any part of your body, you will be charged with the fixed charge offence of €60 and 2 penalty points. If your phone is sitting in a hands free device and you touch it to read or send a text you will be subject to the new regulations.

The information note also clarifies that it is not an offence to speak via a hands-free device or to touch a button on a hands-free device in order to answer a phone call.

Should you have any queries in relation to any of the above please do not hesitate to contact Máirín O’Boyle-Finnegan or your usual contact at Partners at Law.