A Kerry District Court judge is to rule in January if a solicitor can challenge the penalty points legislation in the High Court. It would be the first legal challenge since the system was began a year ago.
Judge John O'Neill told Tralee-based solicitor John Galvin last week he would decide in the New Year if the challenge can go ahead. If successful, it would cast doubt on the legality of the system which is credited with saving almost 80 lives on the State's roads since last November.
The challenge emerged during the case of Galvin's client, Eugene McCarthy, who was stopped for speeding on May 25th. McCarthy decided to contest the offence on a technicality. During the sitting in Castleisland District Court, Galvin said felt his client was being penalised for using the court system.
The solictor says the points system deters people from using the courts, gives undue power to gardai to be roadside judge and jury, and that it is non-graded, meaning drivers going 3 mph over the limit face the same sanction as drivers doing 120 mph.
"I have always felt that one should have free access to the courts and not be penalised for doing so," Galvin told Motors. If a driver pays a fine of €80 within 28 days of an offence, he or she incurs two penalty points. But if drivers opt to go to court and are found guilty, four points will be incurred along with an €800 fine.
Galvin hopes to have written submissions made to Judge O'Neill in two weeks and may hear as early as January 22nd on whether his arguments have been accepted. "This is a legal point that I have been exploring for some time," he said. "I have a barrister on board but this is very much in its infancy. If I was successful at the High Court, the State would appeal to the Supreme Court."
Galvin, who is funding the challenge personally, says he will bring the challege directly to the High Court if he is refused by Judge O'Neill.
The challenge is hardly unexpected. In April, Judge Mary Martin, speaking in Castlecomer District Court in Co Kilkenny said the legislation should be challenged. Speaking in Castlecomer District Court, she said "someone should contest" the legislation. She was speaking during the case of a man caught speeding whose €80 fine was increased to €120 because of the time it took him to sort out a discrepancy in paperwork he had filled in.
Conor Faughnan of the AA says the challenge comes as no surprise. "The Road Traffic Act is the most challenged piece of legislation in the State - every dot and comma has been up and down to the Supreme Court at some stage." The AA and other organisations foresaw the possibility of a challenge to the points legislation, he said, but hopes intense scrutiny by the Attorney General will ensure the law is watertight.
Faughnan points out that speeding actually carries four points, not two. It was a misconception that the fine and points are doubled if contested. The sanction is actually halved, he says - if you accept the on-the-spot reduced fine and only two points, then gardai agree not to prosecute you in court.
A spokesman for the Minister for Transport, Mr Brennan, pointed out that the system had "worked remarkably well". It's estimated that 77 lives have been saved since its introduction a year ago.
