# Garda going back on word



## deco87 (4 Dec 2019)

My ex wife insurance was out a couple of weeks.
She has a work van and doesn’t use car much.
She didn’t get a renewal as she had moved address before renewal was issued. She forgot to inform insurance company/ divorced few months and had moved address as a result, ( stressful times).
Bringing the young lad to a disco in her slippers a few months ago stopped at checkpoint.
Garda accepted her account , she was very upset and shocked. Never in trouble before.

She asked the Garda would he talk to me on the phone. I took call and explained like most husbands I looked after the renewals / paperwork for the last 20 years ... it was a genuine oversight..
he said to me ... and subsequently to her ...
I will accept whet you say ,and as it is a genuine error I propose to deal with it as follows ...
I will seize the car for no insurance.
I will issued a fine on the spot notice for no insurance disc ... car was taxed .... if those fines are paid .. in full and on time , that will be the end of it.
Thought that was very decent until .....
Today .... summons arrive for no insurance in the post .... she drives for a living , now her job is on the line.
She is in an awful state of worry now.
She paid over 250 euro in retrieving the car paying the fixed penalty notice etc produced her licence ....

Question.
Rather than spend the day in court and liar out further financially is it ok to send a letter by registered post to the district court clerk .. that will hand the letter to the judge when the case is called ?

-advice appreciated


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## mathepac (4 Dec 2019)

No, a summons to appear is just that. The minimum requirement is to have a legal representative in court to answer the summons or to appear personally.

Having recently appeared for the first time, the first day in court is a lot of waiting around until the case is called and then asking for discovery of the evidence in support of the charge, essentially the details of the Garda statement and a date for a further hearing.

My advice is to consult a solicitor now - this is a serious charge and I have to say that I take a dim view, as will the court, of a professional driver disregarding the law, if that is what happened.


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## Brendan Burgess (4 Dec 2019)

You need to re-orient yourself here.

forget the “my wife is a victim” mentality.

go to the court,explain the backstory , apologise and hope for the best.

by all means take legal advice. But she   Should appear herself and apologise personally


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## deco87 (4 Dec 2019)

This was her own car. Genuine oversight. 
All fines paid in full immediately. 
that was the course the Garda outlined he was doing as he accepted the facts.
He then decided to issue summons out of the blue. 
Genuine oversights can happen especially in stressful times. 
there is no issue as to insurance it was not. 
but it was genuine . Thks for reply


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## deco87 (4 Dec 2019)

Brendan Burgess said:


> You need to re-orient yourself here.
> 
> forget the “my wife is a victim” mentality.
> 
> ...


probably best to appear. not sure if money is well spent ... on a solicitor to say same thing 
Food for thought


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## Palerider (4 Dec 2019)

If this is a first offence then you should be fine, get representation, have your ex attend court and outline to the Court as you have here, contrary to a lot of people's opinions the Judges tend to be reasonable and understanding but they must have your exs side of the story, bear in mind that you have paid fines already therefore you should plead guilty but offer the mitigating circumstances.


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## Palerider (4 Dec 2019)

Also the title of your post is disingenuous, the Garda was doing his job, she had no insurance, what would the public say if she were let through that checkpoint and hit a kid on a bike at the next junction.


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## deco87 (4 Dec 2019)

I completely disagree with that ... no issue no insurance . But it was a genuine error absolutely 100 per cent . No intent .... whatsoever. The Garda told me on the phone also my ex wife , that he accepted it was a genuine error. In his words he said “ I propose to deal with the matter as follows ..... they was nearly 300 euro in fines. A lot of arranging to get over and back to the recovery place. 
the state had imposed fines which were considerable .... and stated that the end of the matter and no other sanction would follow.
He then issued summonses quite the opposite of whet he stated he would do.
Yes he most certainly went back on his word.

punishment was issued ..... this is a further punishment.
That’s fine. No excuses... what will be will be ....
Better if he was truthful from the start ... whets new


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## deco87 (4 Dec 2019)

Palerider said:


> Also the title of your post is disingenuous, the Garda was doing his job, she had no insurance, what would the public say if she were let through that checkpoint and hit a kid on a bike at the next junction.


Couldn’t happen if you read the post. Car was seized immediately, and quite rightly


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## twofor1 (4 Dec 2019)

deco87 said:


> But it was a genuine error absolutely 100 per cent . No intent .... whatsoever. The Garda told me on the phone also my ex wife , that he accepted it was a genuine error. In his words he said “ I propose to deal with the matter as follows .....



Possibly on reflection the garda realised his mistake. He /she does not have any discretion in such an offence, even genuine 100% errors. Their job is to prosecute, it is the courts job to decide the penalty.

Possibly on reflection the garda realised if a car has been impounded for been driven with no insurance, there has to follow a charge of driving with no insurance.


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## deco87 (4 Dec 2019)

Perhaps


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## galway_blow_in (4 Dec 2019)

Palerider said:


> Also the title of your post is disingenuous, the Garda was doing his job, she had no insurance, what would the public say if she were let through that checkpoint and hit a kid on a bike at the next junction.



dont be obtuse , the OP clearly outlines the sequence of events , the guard said he would take their explanation at face value and then apparently devised a practical solution by impounding and on the spot fine only to do a 180 and then subsequently decided to peg them under the bus .

had the guard given them chapter and verse from the start , it would not be as contemptible


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## Palerider (4 Dec 2019)

galway_blow_in said:


> dont be obtuse , the OP clearly outlines the sequence of events , the guard said he would take their explanation at face value and then apparently devised a practical solution by impounding and on the spot fine only to do a 180 and then subsequently decided to peg them under the bus .
> 
> had the guard given them chapter and verse from the start , it would not be as contemptible



I'm not, the title is disingenuous, we only have one side of this story, the Guards always get the bashing but in this story we have just one side, it may be 100% correct but that's a big headline statement, let the Judge decide.

It's not the worst offence and I'm sure on the day will be dealt with on the easy side of the scales of justice but the Garda is entitled to issue that summons, his boss could have insisted upon it or he could have changed his mind.


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## SparkRite (4 Dec 2019)

How long after the car was impounded did your ex arrange insurance on the car?


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## galway_blow_in (4 Dec 2019)

Palerider said:


> I'm not, the title is disingenuous, we only have one side of this story, the Guards always get the bashing but in this story we have just one side, it may be 100% correct but that's a big headline statement, let the Judge decide.
> 
> It's not the worst offence and I'm sure on the day will be dealt with on the easy side of the scales of justice but the Garda is entitled to issue that summons, his boss could have insisted upon it or he could have changed his mind.



" we only have one side of the story "

you could say that about virtually any story on this site or any other , if we arent going to take people at face value , the whole thing is a bit of a farce .

lame arguement palerider


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## deco87 (4 Dec 2019)

Palerider said:


> I'm not, the title is disingenuous, we only have one side of this story, the Guards always get the bashing but in this story we have just one side, it may be 100% correct but that's a big headline statement, let the Judge decide.
> 
> It's not the worst offence and I'm sure on the day will be dealt with on the easy side of the scales of justice but the Garda is entitled to issue that summons, his boss could have insisted upon it or he could have changed his mind.


I’m not bashing the Garda. I agree absolutely no insurance is outrageous and should be prosecuted. He is doing his job properly. No issue. He is doing exactly the opposite of what he promised he would do.
What prompted him I do not know, 
I disagree it is one of the worst offences . 
the damage that could have done ... thank god there was no injury or accident .
The insurance was out couple weeks ... as it happened she doesn’t use it ... has full use of work van.
It was insured the following morning. ..

she has had car insurance every year for the last 30 years. Genuine oversight. No issues only the Garda was unfair as coming to Xmas she is worried out of her skin... after getting summons unexpected as he went back on his word. He is right. better if he didn’t say what he did ... that’s all


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## Palerider (4 Dec 2019)

galway_blow_in said:


> " we only have one side of the story "
> 
> you could say that about virtually any story on this site or any other , if we arent going to take people at face value , the whole thing is a bit of a farce .
> 
> lame arguement palerider



I agree with your core point, this is my view on the title of the post, I've nothing further to add for the OP, I hope and expect it will work out on the day, do get representation and try not to sweat it in the interim.


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## mathepac (4 Dec 2019)

Hopefully the fines for driving with no insurance and the pending prosecution have been declared to her insurers, otherwise, if she takes the car out again she may not have insurance.


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## deco87 (5 Dec 2019)

There was no pending prosecution. 
there was no convictions
There was no penalty points ... arising from this issue when insurance was taken out the next day. 
that’s the whole point of what the Garda said he was doing . Which was decent. Monetary fines were paid.  No issue. Then ....

now he has gone back on his word so these issues may now arise pending on the outcome of the court shortly.. including possible loss of her job .... no issue as I keep saying .... genuine oversight .... doesn’t change the facts that there was NO INSURANCE on that day


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## Leo (5 Dec 2019)

deco87 said:


> Better if he was truthful from the start ... whets new



That Garda will have superiors who may have over-ruled what they saw as lenient treatment. He proposed a means of dealing with it, but he doesn't have final say. 



deco87 said:


> arising from this issue when insurance was taken out the next day.



Do they know now?


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## Brendan Burgess (5 Dec 2019)

On reflection...


I suspect that you can’t be fined and prosecuted for the same offense. 

Take legal advice.  If there is a legal issue get a solicitor to represent her. 

If there is no legal issue she should go herself and tell the judge the story. 

You could call the garda in an enquiring manner and not in an accusatory manner and ask if there has been an admin error. 

Brendan


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## deco87 (5 Dec 2019)

Know 


Leo said:


> That Garda will have superiors who may have over-ruled what they saw as lenient treatment. He proposed a means of dealing with it, but he doesn't have final say.
> 
> 
> 
> Do they know now?


 
The application for insurance quote was completed truthfully and all questions asked were answered.


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## Sunny (5 Dec 2019)

I was always under the impression that driving without insurance was not an fixed charge offence and that it always led to a summons if you couldn't provide evidence of insurance cover. So I don't see how the guard could decide to 'Fine you' as a way of dealing with the offence. You will have to respond to the summons but there is nothing stopping you calling into the station and asking to speak to the Guard to clarify exactly what you fined for. As Brendan says he can't fine you with a fixed charge and then send you to court to get fined again.... I would get a solicitor to be honest to take a look at the case and take advice from them if it is her livelihood.


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## Leo (5 Dec 2019)

deco87 said:


> The application for insurance quote was completed truthfully and all questions asked were answered.



So I take it you have not informed them of the summons. This is a significant issue and you have a duty to inform them immediately, the policy might be considered void until such time as you do.


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## Steven Barrett (5 Dec 2019)

deco87 said:


> .... she drives for a living , now her job is on the line.
> She is in an awful state of worry now.






deco87 said:


> not sure if money is well spent ... on a solicitor to say same thing



Her living is on the long and she is in an awful state of worry but you won't pay a few hundred quid to get expert advice from someone who knows the workings of the courts, has knowledge of the judges she could get and would be able to present her case in the best possible light? 

Remember, you initial thoughts was for her not to appear at all and send a letter instead. 

Get the advice. A DIY job could result in her losing her job and you will have to increase the maintenance payments


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## mathepac (5 Dec 2019)

deco87 said:


> There was no pending prosecution.


There is a pending prosecution, she's just been summoned to court to answer charges of driving with no insurance.

Your insurance may oblige you to inform the insurer of any material fact that could alter the risk-profile of the insured, including pending prosecutions, as they happen not a renewal time.


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## dereko1969 (5 Dec 2019)

Make sure you have a solicitor and it would be advisable that you both show up on the day. If both of your stories tally then the judge may be lenient, if your ex-wife blames you and you're not there to agree the judge may doubt the veracity of her statement. Perhaps your solicitor will advise that a statement in advance might suffice (but doubtful)
Seriously if your ex-wife's job is at stake a few quid on a solicitor will be well worth it.


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## SparkRite (5 Dec 2019)

Brendan Burgess said:


> On reflection...
> 
> 
> I suspect that you can’t be fined and prosecuted for the same offense.
> ...


 
Different offences as per OP. 
Fine for non display of disk. 
Summons for no valid insurance.


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## Brendan Burgess (5 Dec 2019)

SparkRite said:


> Different offences as per OP.
> Fine for non display of disk.
> Summons for no valid insurance.



Ah, ok.

Brendan


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## Sunny (5 Dec 2019)

SparkRite said:


> Different offences as per OP.
> Fine for non display of disk.
> Summons for no valid insurance.



But how was he fined? As far as I know, driving without an insurance disk is not an offence under the fixed charges or penalty points system. Guards will usually insist on seeing a valid insurance disk within a couple of days but I have never heard anyone being fined for not displaying their insurance disk. Driving without actual insurance is a mandatory court appearance. The Guard in question had no ability to issue a fine once it was admitted that there was no insurance. It has to be a court fine. He was right to seize the car but the rest is questionable. Worth a solicitor taking a look if the OP has his facts straight.


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## deco87 (5 Dec 2019)

Leo said:


> So I take it you have not informed them of the summons. This is a significant issue and you have a duty to inform them immediately, the policy might be considered void until such time as you do.
> [/





SparkRite said:


> Different offences as per OP.
> Fine for non display of disk.
> Summons for no valid insurance.


correct I will attend with her and get solicitor .


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## deco87 (5 Dec 2019)

Sunny said:


> But how was he fined? As far as I know, driving without an insurance disk is not an offence under the fixed charges or penalty points system. Guards will usually insist on seeing a valid insurance disk within a couple of days but I have never heard anyone being fined for not displaying their insurance disk. Driving without actual insurance is a mandatory court appearance. The Guard in question had no ability to issue a fine once it was admitted that there was no insurance. It has to be a court fine. He was right to seize the car but the rest is questionable. Worth a solicitor taking a look if the OP has his facts straight.


No Insurance is not a discretionary offence that Guards can issue a caution. Must prosecute. She received a fixed penalty notice re No Insurance disc displayed and paid it that day. She has been summons for no insurance disc as well as no insurance. That summons for failing to display a valid insurance disc ,  should either be withdrawn or struck out as a fine has been issued and paid ,in respect of it.  and receipt retained as proof.
She will state the facts as led by her solicitor and the Garda will agree I'm sure as he said , he accepts it was an error.
I think he thought he could deal with the matter as he initially outlined , but his line management acquainted him with the fact he couldn't ..
Fingers crossed for her . Only human , mistakes happen.


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## Leo (6 Dec 2019)

deco87 said:


> correct I will attend with her and get solicitor .



Not sure if the correct means you haven't told the insurance company yet. If that is true and it comes up in court, it will look very bad as the insurance is effectively void.


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## DirectDevil (6 Dec 2019)

A few observations ;

Absence of insurance is a strict liability type of offence.
The fact of absence of insurance creates an automatic assumption of guilt.
It is possible to avoid conviction for no insurance if there is a persuasively compelling reason.
Unhappily, failure to renew through oversight is probably not within the scope of a valid defence.
The other matters should help to mitigate as clearly this was a "sin" of omission rather than commission.
Give the judge as much evidence as is possible to allow them to mitigate the severity of penalty.

As far as the Gardaí are concerned there is virtually no true discretion about bringing a charge as the absence of insurance is treated seriously.
You could only object to a prosecution if a letter of comfort had issued indicating that there would be no action and a summons then issued.
Court attendance is imperative

People have adverted to the issue of disclosure for the new insurance. Two points occur to me ;

1. What is required depends on the exact wording of the proposal form or on the presumptions made if seeking a quote on line or over the telephone.

It is possible that OP's ex. may have been entirely within her rights not to say anything about a pending prosecution when proposing for the new insurance. When does a pending prosecution actually become a pending prosecution ? If there was no pending prosecution the morning after the traffic stop would she have to have declared the matter to the new insurers ? Arguably not.

This is a strict or narrow construction of the issue.


2. Insurance contracts are written on an utmost good faith basis alias uberrima fides.

This concept includes the obligation to disclose material facts.

A material fact is one that is capable of influencing a prudent insurance underwriter in deciding whether or not to accept a risk proposed for insurance and, if so, upon what terms and conditions.

It is for the insurance underwriter to decide if a fact is material not the party proposing or renewing.
If there is doubt the general rule is to disclose thus keeping you on the right side of right.

I would argue that the proposer [the ex.] may well have failed in the duty of disclosure in not revealing the traffic stop by Gardai because the likely consequences of that event could be reasonably expected to be known.
However, the new insurers, on hearing of the full circumstances, might take a lenient view.

If there is a conviction for no insurance that will indisputably have to be disclosed before next renewal.

If insurers decide to cancel the new insurance ab initio [from the beginning] that of itself then becomes a material fact to be disclosed in any future applications for insurance and adds additional grief to the situation.

The very best outcome here is a relatively lenient penalty based upon persuasive mitigation and a kindly disposed insurance underwriter to decide to continue the new insurance contract as if it had been validly formed.


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## deco87 (6 Dec 2019)

Thanks for that .... well composed. 
There was no previous criminal convictions penalty points , or indeed expected prosecution when the renewal was done ...
Of course the court outcome will be disclosed in due course ....


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## Leo (6 Dec 2019)

deco87 said:


> Of course the court outcome will be disclosed in due course ....



Again, you most likely need to tell them now. If they decide to void your insurance over the failure to do so, you may find it very difficult to obtain insurance in the future.


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## DirectDevil (6 Dec 2019)

deco87 said:


> Thanks for that .... well composed.
> There was no previous criminal convictions penalty points , or indeed expected prosecution when the renewal was done ...
> Of course the court outcome will be disclosed in due course ....



To clarify something.
I assumed that your ex. had effected new insurance the morning after the traffic stop.
I thought that this was with a new insurer as distinct from renewing the policy that was not renewed - my mistake !
If this understanding is correct be aware that the same principles relating to disclosure apply to and at a "renewal"


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