Yesterday was emergency mini budget day.

In fact, it was emergency maxi budget day and some of you will be no longer driving (because you can’t afford it), and may be cycling everywhere.

In case you decide to cycle from the pub, see Section 51 of the Road Traffic Act 1961.

“51.—(1) A person shall not, in a public place—

( a ) drive or attempt to drive, or be in charge of, animal-drawn vehicle, or

( b ) drive or attempt to drive a pedal cycle,

while he is under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle or cycle.”

Under Section 154 of the Planning and Development Act 2000 a planning authority may issue an enforcement notice on an owner or occupier of land in relation to any development.

The matters to be specified in the notice are set out in Section 154. Suffice to say that, pursuant to Section 154 (8), failure to comply with the notice is a criminal offence.

This is very strange.

Firstly, the Planning and Development Act 2000 places no express obligation on the prosecution to prove that the “development” is unauthorised. Development, whether of use or of works, is not unauthorised unless it post-dates 1st October 1964.

Secondly, the Planning and Development Act 2000 makes no express provision for some obvious defences to any requirement that might be made in a notice, such as;

that the “development” is authorised;

that the “development” is not unauthorised;

that the “development” is exempted development:

In short, the offence seems not to be related to planning (sustainable or otherwise), just a failure to follow what may be a caprice of a planning authority official.

If that is true, it raises constitutional issues in any prosecution under Section 154 (8).

“Seems”, in this context is important. It is not inevitable that the offence actually constitute a failure to comply with a notice simpliciter.

The District Court (the offence is triable summarily) is at liberty to interpret the the Section and the evidential burden on the prosecution to avoid working a breach of the constitution. Under the European Convention on Human Rights Act 2003, there is an obligation on Irish courts to interpret legislation to avoid breaches of the European Convention on Human Rights (in this particular instance Article 6 thereof). It is regularly asserted that the Irish constitution already embodies standards equal to if not greater than the European Convention on Human Rights. A prosecution under Section 154 (8) is the ideal occasion to show that this is true.

In July 2008 the Supreme Court delivered judgment in two separate cases addressing the same point: the need for the Gardai/prosecution to preserve all evidence pertaining to an alleged offence.

That this should emerge twice in the one month, in the Supreme Court is a measure of two things; the frequency with which the Gardai prematurely dispose of evidence and the sclerosis of the criminal prosecution system that it should so stubbornly cling to the determination to prosecute in cases where the accused claims to be disadvantaged in making his/her defence.

In the first case the accused was denied an Order of Prohibition restraining his prosecution HERE whereas in the second the accused was successful HERE. Here the prosecution eventually decided that the case against the accused turned on the fact that the tyres on his vehicle were defective. (He was accused of dangerous driving causing death). Having ascertained that this was the case against him he sought to have the tyres examined by a motor engineer of his choice. He was refused on the ground that the Gardai did not have the tyres any more. It transpired that they had been returned to the owner of the truck being driven by the accused and the owner had destroyed the tyres.