Over the past 24 hours the media has focussed on one of the two reports published by An Garda Síochána yesterday. The report into mandatory alcohol testing checkpoints is important and the discrepancy in testing remarkable, but no-one was wrongly prosecuted or convicted as a result of the errors involved. This is exactly what happened due to problems with the Fixed Charge Processing System (FCPS), the subject of the second report. Unfortunately, the report only explains how summonses were wrongly issued, not how so many resulted in convictions before the issue was spotted.
The report details a number of failings which led to the wrongful prosecution and conviction of thousands of citizens. In short: a massive IT system was rolled out with too many people involved in its operation, no training provided to its users and updates applied to it on a piecemeal basis. Some of the reasons for these issues are the type of thing that can happen with any IT system but are remarkable given that the system involved is part of the State’s criminal justice apparatus, with serious consequences for citizens. For example:
- “This problem should have been foreseen but was not.” (p.35)
- “Members of An Garda Síochana were not given any formal instruction on the FCPS or the issuing of Fixed Charge Notices (FCN‘s) between 2004 and 2016.” (p.36)
- “A [Fixed Charge Processing Office] FCPO home page exists [on the Garda Portal] but this does not contain all related and necessary information … There is currently no one place that Garda personnel can go and get comprehensive, clear, concise and up to date direction on using the FCPS.” (p.36)
- A Manual Summons Report, which was intended to inform prosecuting gardaí that a fixed charge offence would not lead to a summons being issued automatically and would need manual intervention “remains largely unknown by district staff members and there is still much confusion about same.” (p.37)
- “From the day this system was created there was a lack of functionality between the two core systems i.e. FCPS and Pulse.” (p57)
This report comes on the back of, and refers to, a report by the Garda Síochána Inspectorate on the FCPS in 2014 which said that fixes to various issues in the system had resulted in a “technically deficient, managerially uncoordinated, ineffecient and excessively resourced support unit” (p.9 of that report).
The new report identified a number of issues that required a solution but the one that remains unexplained and is difficult to comprehend, is where convictions were imposed for driving without an NCT certificate where the accused had already paid a FCN.
The crucial point here is that one cannot be convicted of Fixed Charge Offence if a FCN has not issued in advance. If no FCN was issued or received by the accused, or if it was issued and was paid, the accused has a full defence to the charge. So why did we not encounter thousands of people in court between 2014 and 2016 giving evidence that they had paid their FCNs?
Gardaí first became that there was a defect in the FCPS in respect of the NCT offence on 6 February 2016 and set about examining and rectifying the issue. Separately, on 26 April 2016 a Garda Sergeant contacted the Garda Information Services Centre to report that a defendant in a particular District Court had appeared on foot of a summons for driving without an NCT certificate when it transpired that the defendant had (a) received a FCN in advance and (b) had paid the fine. The summons should have never issued but, in the event, the defendant had a full defence and the charge was struck out. What beggars belief is that this was the first time the issue arose in a court.
The report gives us only one aggregate figure for convictions arising out of the various issues identified: 14,700 (p.33). It is not clear whether this 14,700 relates only to NCT convictions or to the full range of FCOs. The issues outlined in page 33 are different from those in page 56. How many of the 14,700 convictions referred to were cases where the FCN had been paid, or is there a different statistic entirely for that issue? The report is not just unclear, but confused.
Bear in mind that a court conviction for driving without an NCT carries 5 penalty points, and 12 penalty points leads to disqualification (7 for learners and novices). A second conviction for driving without an NCT carries an automatic 2 year disqualification. So, in almost 15,000 convictions, were there none where the accused was at risk of disqualification or was in fact disqualified? How was it that no-one came to court before 26 April 2016 to say that they had already paid a FCN and should not have been prosecuted? How was there not at least one driver who learned of a conviction and then appealed it because they had already paid the fine?
Are we to accept that thousands of drivers received notification that they had been convicted of an offence and received penalty points and, possibly, a disqualification from driving even though they had already paid a FCN, and they did nothing?
The failure to address this aspect of the examination means that the following further detail is needed:
- Of the 14,700 cases identified, how many were prosecutions where the FCN had been paid?
- Of those cases, how were the summonses served and have the declarations of service been examined?
- How many of those convictions were recorded in the absence of the defendant?
- How many of those convictions resulted in the disqualification from driving of the defendant?
A note in the report, after a review of previous reports into the FCPS, states:
The recommendation that the process becomes totally automated using technology to ensure more consistent results is a common theme throughout all these reports. (p.43)
That is well and good, but some of the problems that have arisen are the result of automation and technology. They can be fixed, but a greater degree of care is required in designing and implementing these systems. If Amazon’s order fulfillment system gets a code wrong you might “The Pelican Brief” on DVD instead of in paperback, if the Gardaí’s system gets a code wrong you might get a criminal record.