About this case:

• Citation:
  [2025] IEHC 237
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Miriam O'Regan

Delivering judgment for the High Court, Ms Justice Miriam O’Regan highlighted that “by virtue of the FCN the defendant was aware that the FCN related to a speeding matter on a particular date” and further emphasised that “no evidence was adduced by the defendant at the hearing that she found herself incapable of executing the FCN and availing of same in advance of the summons issuing by reason of an asserted existence of a serious flaw in the factual detail contained”.

Background

The defendant came before the District Court on foot of a summons which alleged that on 7 September 2022, she drove a mechanically propelled vehicle bearing registration number 202 D 4249 at a speed exceeding the motorway speed limit of 120kmph contrary to s.47 of the Road Traffic Act 1961 (as amended).

On 16 September 2022, the defendant had received a fixed charge notice (FCN) which stated inter alia that she was “driving at a speed of 131km/h exceeded motorway speed limit 120km/h contrary to s.47” on 7 September 2022 at the M7 Ballinahinch westbound in Birdhill, Tipperary.

On 23 September 2022, the defendant contacted gardaí and was advised that she had exceeded the “average” speed. The defendant later expressed to gardaí that she was not happy with the FCN as it did not refer to “average” speed and elected not to pay the fixed charge.

The defendant pleaded guilty and accepted that she had been speeding in excess of the average speed limit but raised an issue in respect of the FCN in that it did not refer to “average”.

The defendant submitted that the FCN materially misstated the particulars of the actual speeding alleged and that the nature and location of the offence were misleading and likely to cause prejudice to the defendant in deciding whether or not to pay the charge.

The defendant further alleged that only when she contacted gardaí directly was she advised that the 131kmph referred to was an average speed over a 9km distance and this requirement for further clarification evidenced that the FCN was materially and fatally defective.

The prosecution submitted that in her contact with gardaí, the defendant was well acquainted with what was alleged, that she had not taken the opportunity to avoid the District Court prosecution and conviction and that there was no requirement in the legislation to incorporate the word “average” into the FCN.

The prosecution argued that once the matter came before the District Court, the court’s jurisdiction was based upon the charges set out in the summons and if there was any variation or defect between the complaint and the evidence adduced in support thereof, same would should be amended in accordance with established case law concerning Order 38(1) and (2) of the District Court Rules.

Case Stated

The District Court stated a case to the High Court concerning whether:

1. the provisions of SI No. 243/2017 – Road Traffic Act 2010 (Section 36(1) (Prescribed Notice) Regulations 2017 in relation to the particulars of the FCN complied with when the defendant was served with the original FCN;

2. if not, whether the fact that the defendant later became aware that the speed of 131km/h was a reference to her average speed over two locations at a time when she had the opportunity to accept and pay the FCN under Part 3 of the Road Traffic 2010 was relevant to whether she had been afforded or adequately informed of the allegation made against her and the entitlement of the court to proceed with the summons; and

3. notwithstanding the court’s entitlement to amend the summons pursuant to Order 38, where there is a variance between the complaint and the evidence adduced in support thereof, whether the fact that the FCN differed from the evidence affected the entitlement of the court to record a conviction on foot of the summons.

The High Court

Ms Justice O’Regan set out the statutory provisions engaged in the case before her and considered the extensive jurisprudence in relation to FCNs.

The judge was satisfied that the service of a FCN is a necessary prerequisite to the issue of the summons as per the provisions of the road traffic legislation, but that the content thereof does not hold any statutory status.

The court noted that the relevant test was whether a reader of the relevant form would realistically be misled into concluding that its nature was different by reason of any variation error or slip from the prescribed form, in accordance with DPP v O’Sullivan [2008] IEHC 375, and that the form was required to be substantially the same as the precedent.

Examining the FCN, Ms Justice O’Regan was satisfied that the FCN clearly related to a speeding offence on a given date and that the defendant was aware of this, noting that the fact that the place and time of offence were identified at the end of the 9km distance over which the assessment of average speed was conducted was a quintessential matter that could be addressed by s.12 of the Interpretation Act 2005.

The judge had regard to the fact that no evidence had been adduced at hearing by the defendant to the effect that she found herself incapable of executing the FCN and availing of same in advance of the summons issuing by reason of an alleged serious flaw in the factual detail contained therein. 

The High Court was also satisfied that the only possible prejudice or breach of the right to a fair trial asserted by the defendant was that absent the word “average” on the FCN and reference to the location(s) between which the “average” was calculated, she was materially misled in relation to the nature of the offence and its location. 

Ms Justice O’Regan considered that this could not amount to prejudice or interference with her rights, finding that only actual prejudice is relevant as opposed to hypothetical or possible prejudice.

Conclusion

Accordingly, the High Court answered the questions posed by the District Court as follows:

1. The FCN was duly served and the error in its form did not render it invalid unless the evidence of the defendant, and the finding of the court, was that the defendant was misled by it, or thought it was different in substance to what it was. In the circumstances, the FCN complied with the regulations and statutory provisions and any perceived error could be dealt with under s.12 of the 2005 Act.

2. The fact that the defendant later became aware that it was an average speed of 131km/h at a time when she had the opportunity to accept and pay the fixed charge notice was relevant to whether or not she had been afforded adequate information on the allegation made against her and in dealing with any asserted prejudice.

3. The fact that there was a variation between the complaint and the evidence adduced in support therefore does not affect the entitlement of the court to record a conviction on foot of the summons under the provisions of O.38 of the District Court Rules.

Director of Public Prosecutions v O’Brien [2025] IEHC 237