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At Ennis District Court, Judge Patrick Durcan dismissed 98 ‘Go Safe’ prosecutions against the motorists accused of speeding on two legal grounds.

In a fresh blow to the ‘Go Safe’ system, Judge Durcan dismissed the cases over the failure of the Go Safe personnel in court to provide evidence that they were authorized to give evidence on behalf of Inspector John McDonald, who heads up the Garda Fixed Charge Processing Unit.

Judge Durcan, who has been a staunch critic of the way the Go Safe prosecutions are brought to court, had adjourned months of Go Safe prosecutions into yesterday’s date due to a High Court challenge.

He also dismissed the 98 cases after ruling that the Go Safe employees couldn’t give any evidence as to whether the fixed-charge notice was paid or not.

Surveying the packed courtroom that included around 12 Go Safe staff, Judge Durcan said: “Insp. McDonald is out in force today with the artillery.”

The fleet of around 50 Go Safe vans is operated by an Isle of Man firm that last year put the profits it makes out of sight by changing its status to that of an unlimited company.

The Go Safe consortium secured the €80m Garda Siochana contract to operate the speed camera vans in 2009 and recorded operating profits of around €50,000 per week in 2012.

Earlier this year in court, Ivor Browne, director of the firm that operates Go Safe, Road Safety Operations Ireland, told Judge Durcan: “The reason we introduced the Isle of Man structure was to just limit access to our accounts from a competitors’ point of view.”

Judge Durcan dismissed the cases yesterday following a test case brought by Ennis solicitor, Darragh Hassett on behalf of one of his clients. Speaking after court yesterday, Mr. Hassett said that the cases were dismissed “after I exploited flaws in the legislation enacted to outsource the prosecution of speeding offenses”.

He said: “There is no argument that speeding on our roads is not welcome but our citizens are entitled to due process and fair procedures when they face a day in court. If the State in its wisdom is outsourcing important garda duties to a private off-shore company, then the same principles and duties that the gardai are bound by must apply. To date that has not been my experience of this setup.”

Mr Hassett said that the Road Traffic Act 2010 facilitates the outsourcing of detecting motorists speeding to the Isle of Man firm.

He said that Go Safe “should not be asked to even attempt to replicate the expertise that experienced Gardaí have brought to this role daily for many years”.

Irish Independent

Not so long ago, we talked to you about the precarious legal position of defending yourself, your family, and your possessions in your home. In 2004, Padraig Nally was convicted for shooting dead a trespasser who had, it seems, terrorized him over a long period. There was public outcry at the time, and after his conviction was overturned, there was a move to produce legislation, which ended the confusion.

The Criminal Law (Defence and the Dwelling) Act 2011  came into effect on 13 January 2012 and clarified the law concerning the defense of the home. It recognizes the constitutional status of a person’s dwelling and clarifies that they may use reasonable force to defend themselves from intruders unlawfully in their home. It allows for the use of such force as is reasonable in the circumstances to protect people in the dwelling from assault, to protect property, to prevent the commission of crime, or to make a lawful arrest. The act also extends the protection to the curtilage of the dwelling. It explicitly provides that a person is not obligated to retreat from their home during an intrusion. It also provides that a person who uses reasonable force, as provided for in the act, cannot be sued for damages by a burglar and will not be guilty of an offense.

The act makes the provision for the following:

• Definitions for such terms as ‘dwelling,’ ‘property,’ and the ‘curtilage’ of the dwelling,
• The extent to which justifiable force may be used against an intruder,
• That the use of justifiable force against another intruder with criminal intent would not exclude the use of force causing death,
• The absence of a requirement on the part of an occupier to retreat when defending the dwelling or the people in it against an intruder entering with criminal intent and
• A person who uses such force as permitted by the act will not be liable in tort for injury, loss, or damage arising from such force.

Daragh Hassett has over ten years of experience in advising on criminal law matters and is happy to speak to anyone about this or any other criminal matter.

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With Christmas looming people are more wary than ever of making savings where they can. Consequently, more people are shopping online than ever before and here we look at the pros and cons of doing so.

Shopping from home is also known as ‘distance selling’ and includes purchases made by e-mail, fax, telephone, internet shopping, and mail order. Distance selling involves communication between a supplier and a consumer where they are not in each other’s physical presence.

The European Directive on Distance Selling and the EC (Protection of Consumers in Respect of Contracts made using Distance Communication) Regulations 2001 aim to ensure that consumers can expect the same minimum level of protection no matter where a supplier is based in the European Union, European Economic Area, and Switzerland.

Under the EU Law Suppliers are obliged to carry out the contract within 30 days of when the order was placed unless they have agreed otherwise with the consumer. If the supplier is unable to uphold its end of the contract, it must inform the consumer who is then entitled to a refund within 30 days. Where the goods the consumer seeks are unavailable, equivalent goods may be provided. This can only be done where the consumer has consented to this arrangement before the contract is made and the consumer is informed that if he or she decides to withdraw from the contract, then no cost of returning the equivalent goods can be deducted by the supplier.

It is to be noted that the majority of the Regulations do not apply to food and drink delivered to the consumer at his or her home or his or her place of work by regular roundsmen (for example, milkmen). However, once-off transactions are covered.

Remember, you will still be protected by general consumer legislation whether you purchase the goods in Ireland or another Member State, if, for example, you buy goods in the UK, you will have the protection of the Distance Selling Regulations and the UK Sales of Goods Act 1979.

If you buy from a website or a catalogue based outside the EU any problems that arise may be more difficult to solve – so check the terms and conditions. Any international complaints can be directed to Econsumer.gov after you have tried to solve the problem directly with the seller. Econsumer.gov also tries to protect consumers from internet scams. Advice can also be sought from the European Consumer Centre Dublin, a member of the European Consumer Centre Network.

Distance contracts are not enforceable unless before making the contract, the supplier provides this information and states clearly that the purpose of the proposed contract is commercial. The supplier must provide the consumer with written confirmation of this information.

The supplier must provide written confirmation of the contract to the consumer before or at the time the good or service is delivered. Included in this written confirmation should be:

• A postal address to which complaints can be sent
• How can the contract be canceled
• The conditions for terminating the contract if it is of unlimited duration or longer than one year
• Information on the aftersales services and guarantees that apply. If the contract is with an Irish company, this information will be set down in the Sale of Goods and Supply of Services Act, 1980. If the contract is with a company outside Ireland then, in general, the rules that apply are usually subject to legislation in that country, which should be laid down in the contract.

Consumers are entitled to a cooling-off period of 7 days, which begins on the day that they receive the product. In the case of a service, the cooling-off period begins on the day the contract for distance selling was concluded or the day written confirmation of the contract was received. During the cooling-off period, the consumer can cancel distance contracts without giving a reason and without incurring charges or penalties other than possible charges incurred in returning the goods. If a supplier fails to provide written confirmation, the cooling off period is extended to three months from the date the goods were received or the contract for the provision of services was completed.

Upon cancellation, the distance seller is obliged to reimburse the consumer within 30 days. Once the contract is cancelled, any credit agreements entered into at the time of the contract will be cancelled as well.

At Hassett Considine Solicitors we provide advices to clients who encounter difficulties when shopping on line. Please contact Daragh Hassett of this office for a consultation on the numbers stated below. We would like to take this opportunity to wish all our readers and clients a happy and holy Christmas.

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Anyone with an asset whether it be land, cash, shares or otherwise should make a will. A will is a witnessed document that sets out in writing the deceased’s wishes for his or her possessions, (called his or her ‘estate’), after death.

It is important for you to make a will because if you do not, and die without a will, the law on intestacy decides what happens to your property. A will can ensure that proper arrangements are made for your dependants and that your property is distributed in the way you wish after you die, subject to certain rights of spouses/civil partners and children.

If you have made a will, you are called a testator (male) or testatrix (female). A person who dies having made a valid will is said to have died ‘testate’. If you die testate, then all your possessions will be distributed in the way you set out in your will. It is the job of the executor or executors you named in your will to make sure this happens. There are legal limits as to how much of your property goes to which person, as set out in law in the Succession Act, 1965. An executor can be a beneficiary under the will. In other words, the executor can also inherit under the will.

After you die, somebody has to deal with your estate, by gathering together all your money and possessions, paying any debts you owe and then distributing what is left to the people who are entitled to it. If you leave a will before you die, one or more of the executors you named in your will usually has to get legal permission from the Probate Office or the District Probate Registry for the area in which you lived at the time of death to do this. Permission comes in the form of a document called a Grant of Representation.

If you did not name any executors in your will or if the executors are unable or unwilling to apply for a Grant of Representation, documents called Letters of Administration (With Will) are issued. When your estate is distributed, the legal rights of your spouse/civil partner and children, if any, will be fulfilled first after any debts are paid before any other gifts are considered.

A person who dies without a will is said to have died ‘intestate’. If you die intestate, this means your estate, or everything that you own, is distributed in accordance with the law by an administrator. To do this, the administrator needs permission in the form of a Grant of Representation. When a person dies without a will or when their will is invalid, this Grant is issued as Letters of Administration by the Probate Office or the District Probate Registry for the area in which the person lived at the time of death. It is in these circumstances that most disputes arise between families where division of assets is required by law.

If you have any queries in relation to the content of this article or should you wish to make a will please contact Joe Considine, Solicitor on 065 6865480.