New loophole uncovered in Go Safe prosecutions

New loophole uncovered in Go Safe prosecutions

Edwin McGreal

A fresh loophole has been unearthed in GoSafe speeding prosecutions.

A case was struck out at Castlebar District Court on Friday last after defending solicitor Evan O’Dwyer successfully argued that there needed to be a witness before the court who could give evidence that the fixed-charge notice was created, before being sent to the accused.

A fixed-charge notice is sent out to an accused driver after he or she is observed exceeding the speed limit by a GoSafe van. However, while defending Philip Breslin of Cloonyvollow, Corroy, Ballina, Evan O’Dwyer argued that while there is a presumption in the Road Traffic Act that the fixed-charge notice is sent to the accused, evidence needs to be before the court about how the fixed-charge notice is generated or created. If a garda is prosecuting the case, he or she is usually able to give that evidence.

However, Mr O’Dwyer successfully argued that neither the GoSafe van operator in question, who was in court, nor the prosecuting Garda Inspector could give that evidence. It would have to come from the GoSafe employee in Thurles, Co Tipperary who generated the summons.

GoSafe camera operator Derek Walsh gave evidence of Mr Breslin’s car driving at 64km per hour in a 50km-per-hour zone at Gortgrave, Kiltimagh on August 5, 2014. Mr O’Dwyer asked Mr Walsh if he was the only witness from Go Safe in court. Mr Walsh said he was.

“We don’t have the benefit of a witness for this,” said Mr O’Dwyer in relation to the generation of the summons. Inspector Tom Calvey initially gave evidence about the fixed-charge notice being generated, but Mr O’Dwyer interrupted him to say he ‘could not give that evidence’.

After Mr O’Dywer made his case, Inspector Tom Calvey told the court ‘I can’t argue with Mr O’Dwyer’, and he agreed with Mr O’Dwyer in relation to what evidence can be presumed.

Judge Mary Devins struck the case out, creating another legal conundrum for Go Safe prosecutions throughout the country. It would appear that GoSafe employees in the company’s processing centre in Thurles will need to attend courts around the country to give this evidence, unless the Government can find a way to close this loophole.

Legal headaches

Prosecutions for non-payment of fines against drivers found speeding by GoSafe vans have been mired in legal argument on several occasions since the GoSafe system came into being in 2009.

Hundreds of cases in Mayo were held up after a High Court referral by Judge Mary Devins over the question of whether photographic evidence is required with summonses for GoSafe cases.

Judge Devins also asked the High Court to rule on whether the District Court should be supplied with a copy of the contract between the Minister for Justice and a private company under which specific parts of the speed-detector van operations were outsourced by the state.

The High Court ruled that photographic evidence ought to be included with a garda summons to court. The ruling led to hundreds of cases being struck out or withdrawn.

In 2012, Judge Devins described the GoSafe camera system as ‘an abject failure’.