Dáil Éireann debate -
Wednesday, 10 May 1961

Vol. 189 No. 2

Committee on Finance. - Road Traffic Bill, 1960—Committee Stage (Resumed).

Debate resumed on the following amendment:

SECTION 30.

48a. To delete subsection (3) and substitute the following:—

"(3) The operation of a consequential, ancillary or special disqualification order shall be suspended or postponed by reason of an appeal being brought against the order or where the order is related to a conviction against the conviction, unless the Court making the order is satisfied and declares that by continuing to drive the person in respect of whom the order was made would or might be a cause of danger to himself or to others."

(Deputy M.J. O'Higgins.)

Mr. Ryan

The purpose of this amendment, as Deputy O'Higgins explained last night, is to provide that where a disqualification order is imposed on conviction in the district court, if the convicted party appeals, the disqualification will be suspended or put in abeyance pending the appeal.

As things stand at the moment, there is not a little doubt as to whether a district justice, on convicting and imposing disqualification, can in fact suspend disqualification pending the hearing of an appeal in the circuit court. There are some justices who refuse so to suspend and, indeed, my own opinion for what it is worth is that they are right in refusing because the law does not permit them to convict and to suspend the suspension of a driving licence pending the hearing of an appeal.

What Deputy O'Higgins is seeking to bring about by this amendment is that a district justice will be allowed to leave a disqualification order in abeyance, pending an appeal in the circuit court, unless the district justice is satisfied that if he were to allow the convicted person to continue driving, he would be a danger to himself and to others.

We believe that the amendment is necessary because there have been cases where, on appeal to the circuit court, the district court conviction has been upset. There have been cases where the circuit court has held that the man was not guilty of dangerous driving or drunken driving or some other offence under the Act. Because of the state of the law as it stands at the moment, there have been and there will be in future, unless the amendment is accepted, cases where people are declared by the circuit court to be innocent of the charge, but who nevertheless have had to suffer a period of three months' disqualification between the time of conviction and the hearing of the appeal. It is obviously wrong to impose a penalty on a man in relation to an offence of which he was never properly convicted. If he appeals his first conviction and is successful he should never have to suffer the penalty of disqualification. I urge the Minister to accept the amendment in the spirit in which it is offered, as an amendment to prevent further injustice.

Minister for Local Government (Mr. Blaney)

The position is that what we proposed in the Bill is as the law now stands and as we have operated it in the past and up to the present. I am also informed that the law in Britain is the law as it is here and as we propose to continue it. I may not have properly caught what the Deputy said because I understood him to say that at present if a man is convicted in the district court and part of the penalty is disqualification, that disqualification cannot be removed pending an appeal. Did I understand the Deputy to say that?

Mr. Ryan

It is done by some justices but not by others. Some feel that they would be wrong in doing it. The matter has not yet been challenged as it would be expensive to do so, but there is considerable doubt about it at the moment.

Mr. Blaney

The reason I said that is that I am quite aware of its having been done. There may be the question that some justices are not operating it, but it might be purely coincidental that in the cases in which they were asked to do it, they felt they could not do it. There is no doubt whatever that the justice is entitled to do this, if he so decides and if the nature of the case is such that he believes he should do it. It is on that basis that I put the provision in the Bill for continued operation in the future and that justices will have power to suspend the suspension, as it were, pending the hearing of the appeal, if they are satisfied that it is correct and just to do so.

The amendment which the Deputy has proposed and supported here is in another direction, that is, that where a suspension follows a conviction, the justice shall be obliged to suspend the operation of the suspension, unless he is satisfied that the continuance of driving by the defendant would be a danger to the defendant himself or to others. Candidly, I am inclined to think that in a case like this we should continue to operate that which we have been operating without any cause for grievance or concern and that which, in the experience of our nearest neighbours in the matter, they have been satisfied to continue in their most recent traffic and transport legislation.

For that reason, I feel that what we propose in the Bill is the best course. Because of that experience of workability and satisfaction, I would feel very loath to depart from that and to adopt some new suggestion such as that contained in the amendment. From our experience, it would seem that there has been no real injustice done or no grievous complaint about the provision as we have been operating it. We have put in that matter because of our experience of its workability and we are inclined to keep what we know rather than change to something new which is possibly not as good.

Mr. Ryan

I do not want to be difficult about this matter. The Minister has assured me that the section as drafted is similar to the provision in the existing Act. If that be so, it would appear that you would still have justices who feel that they have not got the power. I am aware, from my own professional experience, that I can tell clients in advance that from Justice X they will have suspension of the disqualification but that Justice Y believes that he has not the power to do it. That is a fact of which any solicitor in the courts can give evidence. In that regard, I would ask the Minister to reconsider the matter and let us have the result of that reconsideration on Report Stage. If he inquires from the members of the district court bench, he will find that what I say is true.

Mr. Blaney

With regard to the first question as to whether what we propose in the Bill is similar to the existing law, the answer is that the section is the same as it was in the 1933 Act. I do not at all doubt the Deputy's statement that some justices believe they have not the power to suspend a disqualification and that other justices will agree to do so. I suppose it is impossible that we should get uniformity in the matter but does that fact operate against what has been happening up to the present? Would it not also be likely in the future that, when one can anticipate what a justice can do under the present Act, one could also anticipate what the justice would do under this Bill?

I cannot see that the actual individual outlook of the various justices is going to be fundamentally or radically changed by what is proposed in the amendment. The lack of uniformity will still be there and the terms of the amendment will not eradicate it. I would say that in a matter such as this, we have got to rely on our district justices and our judges, and that is only right. We must have that reliance and it is really a question, with regard to the proposals in this Bill, of relying on the justices to use their discretion and their good judgment as to what to do where a suspension of a disqualification is sought on the basis that an appeal is pending. There is no doubt that is a matter which we must leave to the discretion of the justices. As I say, we leave so many things to their discretion that we are not, I think, adding unduly to the number of things which are at their discretion at the moment. We are not, in fact, adding at all. I am merely asking that we should leave to their discretion that which has been within their discretion for the past 27 years.

On that basis, I should be inclined to say to Deputy Ryan and to those who support the amendment that, by and large, it is a matter of leaving it to the discretion of the justices. The amendment as proposed will not eradicate what the Deputy would seem to regard as the fault in the operation of the law in this respect at the moment. Since that is so, there does not appear to me to be any advantage to be gained by the amendment. Indeed, difficulties may be thrown up by the amendment, if carried, which we have not experienced in the past. On balance, I think, we are better served by continuing what is there than by bringing about a change which does not at the outset hold out any hope of improving the position to any degree that I can see.

Mr. T. Lynch

This Bill is now going through the House and goodness knows when there will be another traffic Bill. With all due respect to the Bench and the courts, we should leave as little as possible to the discretion of the judges and the justices. It would be better, when this Bill is passed, that the section were definite and gave proper guidance to the justices. I appeal to the Minister not as a lawyer but as a layman.

Let us take the case of a man whom a district justice convicts and whose licence is suspended. The amendment endeavours to give that man complete and fair justice. This man decides to appeal the decision. While he is waiting for the appeal to be heard, according to the Bill now, he is disqualified. Then he will appear before the court in a month, two months' or three months' time. Heaven knows how long the court's delay will be. It is possible that the higher court will reverse the decision of the district justice. Then, this man finds he is no longer disqualified, but even though he was innocent, he has been disqualified from driving and, indeed, in many cases from earning his livelihood for whatever is the period between the date of his conviction and the date on which his appeal is heard.

The Minister should consult his officers in view of what Deputy Ryan said about the legal end of it. If possible, this section should not be drawn so as to rely on the discretion of the district justice or anybody else, but should be so framed as to give a straightforward direction that if a man is convicted and his licence suspended, if he appeals against the decision, the suspension should be waived until his appeal is heard. The amendment excepts people the court would say were drug addicts or people it would be dangerous to allow to drive at all. That is covered in the amendment. The Minister, in consultation with his officers, should say to the House that he is prepared to meet the movers of this amendment.

Mr. S. Flanagan

There is one aspect of this that has caused considerable difficulty in the courts from time to time. As things stand, the district justice has no authority by which he can even allow a convicted person to drive his car home. If he is disqualified as a result of the decision of the court, then somebody else will have to drive his car home. I think that some consideration might be given to that aspect of the matter.

With regard to the amendment itself, disqualification is something that is imposed for a serious offence. If somebody is convicted in the district court in the month of June and the sentence carries disqualification, the effect of the passing of this amendment would be that he would be allowed until probably the following November during which the disqualification would be suspended. That is a period of four months, which is a long time. He might then be able to secure a postponement or adjournment of the case until the next session which might not take place until the following February. Assuming that his appeal is dismissed, he will have succeeded in postponing the punishment which is due to him for a period of eight months. I do not think that would be desirable.

As I have said the penalty of disqualification is imposed only for serious statutory offences. I think that any amendment which would permit a man guilty of a serious infringement of the law to postpone disqualification for a period of eight months is not desirable. I appreciate that if this happened in Dublin, the appeal would be likely to be heard reasonably soon. If a person were successful, he could have, as Deputy Lynch says, suffered a period of disqualification for which, in the eyes of the law, he was not ultimately liable. I do not think we should worry too much about that. I do not think a district justice would impose disqualification in the first instance, unless there were strong evidence to support his decision.

Mr. Corish

It is automatic in a lot of cases.

Mr. S. Flanagan

But supposing that on appeal the person may get away with it, during the period between conviction and appeal he has been automatically suspended and may have three months during which he is not allowed to drive. That may involve him in very serious loss if he is a traveller, say. Eventually the higher court may clear him altogether and he has been suffering unjustly.

Mr. Corish

Is such a case not covered by the section, which says that a district justice may suspend the disqualification in certain cases? Section 30 (3) says that the court, if it thinks fit, may order otherwise.

Mr. S. Flanagan

That seems to cover it. In that event, I would not be in favour of the amendment.

Mr. Corish

Under Section 30, the court has power to suspend the disqualification.

Mr. Blaney

That is quite right.

Mr. Ryan

I would emphasise again that the Bill, as drafted, provides that the suspension must remain unless the Justice makes a contrary order. What the amendment seeks to do is provide that unless the Justice makes a contrary order the suspension does not operate. Dealing with what Deputy S. Flanagan said, I do not think it matters a hoot when a man suffers a penalty from what date the suspension operates —whether it be a week, three weeks or three months.

However, there have been cases where a justice has imposed a suspension for a three month period and refused to make an order suspending the disqualification pending an appeal. The justice is depriving that person of the right to appeal as far as the penalty is concerned. Of course he may appeal to clear his name. There have been cases where a man is convicted on a technicality in the district court for not having insurance but on appeal to the circuit court he has been able, through better proof, to establish that the vehicle was insured and he was let off scot free. If you leave the law as it stands in this respect you will have continuing cases of injustice.

The amendment provides that an appeal will mean that the disqualification will not operate until the appeal is disposed of unless the justice feels there is a good reason because of the behaviour of the man before him— because it might be obvious to the justice that the man is a menace to the public and a danger to himself. I am glad Deputy S. Flanagan mentioned the difficulty which frequently arises where a defendant drives to the court alone and the justice imposes a disqualification on him. That man finds himself in the position where he cannot drive the car home. It could mean considerable loss since he might have to leave the car stranded and get some other means of transport home or get somebody else to drive it home for him.

I considered it would be more appropriate to make those remarks on the section itself and I am glad Deputy S. Flanagan raised it to give me the opportunity of drawing the Minister's attention to it now. Would it not be possible for the justice to make the suspension order operative from the following day in such cases, so that the defendant concerned would be given an opportunity of driving his car home? Following disqualification, I do not think such a person would be any great danger to the public by being permitted to drive till the following day. In fact, I would say his driving would be vastly improved as a result of his conviction.

Mr. Corish

I cannot see any great difference between the Minister and the mover of the amendment.

Mr. S. Flanagan

There is.

Mr. Corish

What the Minister is providing is that the district justice may, in certain circumstances, suspend the disqualification pending appeal and, as far as I can gather from Deputy Ryan, he seeks to ensure that a person who proposes to appeal may still drive his car pending the appeal unless the court directs otherwise. I do not see much difference between the two.

Mr. Ryan

The amendment puts a greater onus upon the district justice. He has to explain why he refuses to suspend the operation of a disqualification order. It will not do for him to refuse to suspend the order just because he does not like the face of the man before him.

Mr. Corish

Justices can do a lot of things when they do not like the face of the accused, but it seems to me that, in respect of such offences as parking a vehicle in a dangerous position, there should be automatic suspension for a repetition of such an offence. In many cases a car may be parked in what would be regarded as a very dangerous spot—the middle of a cross-roads or near traffic signals— and I say that the man guilty of such an offence deserves to be disqualified. But there are other circumstances in which a car might be deemed to be parked in a dangerous position, such as six feet from a corner in a town or village, where, when a defendant signifies his intention of appealing, the justice would allow him to carry on driving pending the hearing of such an appeal. My reason for holding that there is not much difference between the amendment and the section here is that the section gives the justice power, where he thinks fit, to suspend the disqualification order. I think that ought to be sufficient.

Mr. Dillon

I would ask the Minister to consider this amendment more favourably. The suspension of a licence to drive can be a frightful burden on a person who makes his living by driving. If you have a fellow who drives a lorry to earn his bread and he is convicted of a traffic offence which involves automatic suspension of his licence and he appeals, if the offence is of the character referred to by Deputy Corish—parking his lorry too far from the pavement or at an unsuitable place, and he claims he had not so parked—it seems a dreadful thing to say to him that pending an appeal, which may take months to get heard, he is excluded from earning his living during that period. On the other hand, we are bound to take cognisance of the gross case where a justice, thinks this man is a public menace or a danger to himself. That case would, however, be the exception. There is no use our closing our eyes to the fact that the deprivation of the right to drive for many of us is no more than losing an amenity, but for a great many people it is their livelihood.

Surely it is not unreasonable for us to say that where a man appeals and claims he is not guilty of the offence charged against him, unless there are special reasons, he ought to be free to drive while his appeal is pending. That is the view expressed by this amendment. The general power in a district justice to suspend the cancellation of a man's licence throws the emphasis all the other way. It suggests that the normal thing ought to be that he should not be allowed to drive pending an appeal but in very special circumstances the district justice may waive that and it is a concession. I do not think it is a concession. If a man professes his innocence and has a right to appeal, he ought to be free from the penalties associated with final conviction pending his appeal. The emphasis ought to be on that and there should be an obligation on the State to urge on the district justice that this man is a public danger or is a danger to himself and for that special reason he should not receive the customary concession while his appeal is pending.

Progress reported; Committee to sit again.