Father and son challenge fixed penalty notices over alleged breaches of Covid regulations
Posted on 11th October 2022 at 20:48
A father and son who received €2,000 fixed penalty notices for allegedly breaching Covid-19 regulations by travelling to Dublin Airport last year have been given permission by the High Court to challenge the notices.
Nicolae and Florin Mazarache were travelling to Spain to visit family members on April 17th, 2021, when they were stopped at the airport by a garda. They were later given notices that alleged they had “committed an offence of movement of persons” at a port or airport contrary to the 1947 Health Act (as amended).
A fixed payment of €2,000 was applied and if not paid they would have to go before the District Court where, if convicted, they could face a fine of up to €4,000 and/or one month’s imprisonment, or both.
The Mazaraches, of Lealand Meadows, Clondalkin, Dublin, sought to bring judicial review proceedings. The High Court said the application should be heard in the presence of the respondents, the Garda Commissioner, the Director of Public Prosecutions and the Minister for Health, and not as a one-side only represented application.
The application was heard on Tuesday by Mr Justice Cian Ferriter, who granted leave to bring the case.
Giollaíosa Ó Lideadha SC, for the Mazaraches, argued, among other things, that the fixed payment notice did not cite any particular regulation as having been breached and therefore did not show jurisdiction on its face.
The court heard Mr Mazarche senior had limited English but following a translation by his son, he understood from the garda who stopped him that there would be no fine and that his name was simply being taken.
The State, represented by Remy Farrell SC, said the leave application should be refused as there was a remedy available when a person goes before the District Court if they have not paid the fixed payment notice.
Mr Justice Ferriter said that while a summons or charge sheet do not have to specify the extent of an alleged offence, it must “set out the nub of the offence” so that the person it is addressed to knows what they have to deal with.
In his view, it was arguable that the description of the offence, in this case “the movement of persons” to a port or airport, fell short of the requirement.
While the respondents argued there was evidently an offence created by travelling to an airport, given there was a large number of regulations issued during the pandemic, it was arguable that the requirement (that a person reasonably comprehends what they are accused of) was not met.
He could not say their case was bound to fail, therefore he granted permission to bring the action. He stressed he was not expressing a view on whether they had a good case or not and it is possible the State will be proved correct. He made an order continuing an injunction restraining the State from prosecuting the Mazarches in the District Court pending the outcome of the full hearing.
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