Skip to main content
Normal View

Dáil Éireann debate -
Thursday, 22 Feb 1968

Vol. 232 No. 11

Road Traffic Bill, 1966: Committee Stage (Resumed).

Debate resumed on the following amendment:
In page 36, to delete the amendment of section 36.
—(Deputy T.J. Fitzpatrick(Cavan)).

(Cavan): The amendment of section 36 which I wish to delete proposes to make compulsory disqualification obligatory in the case of the new offence of driving without due care and attention. I pointed out that this is a comparatively minor offence. Under the Road Traffic Act, 1961, we had the offence of dangerous driving and the offence of careless driving. The offence of dangerous driving carried a consequential disqualification on a second conviction and the offence of careless driving under section 52 did not carry a penalty of consequential disqualification. I was pointing out yesterday that in the Bill with which we are now dealing, section 48 creates the offence of driving without reasonable consideration and that does not carry any consequential disqualification. Section 49 creates the offence of driving without due care and attention. This offence does carry disqualification on a second conviction. I think that is too severe. A driver, whether he be a private motorist or a professional driver earning his living by driving vehicles, should not be subject to this consequential disqualification. Without making it consequential, the courts have discretion under the Act to impose disqualification if they think it necessary.

It is very difficult to see what the difference is between the offence of driving a vehicle without reasonable consideration for other persons using the place or the offence of driving a vehicle in a public place without due care and attention. It appears that the second mentioned offence is supposed to be more serious than the first. From the wording of these sections, I find it very difficult to differentiate between the two. It would be a question of luck or chance for a person who was involved in an accident as to whether he would be charged under one or the other. If he is charged under the first, he most probably will not be disqualified; if he is charged under the second and convicted twice, he must be disqualified.

Everybody knows there is a vast difference between dangerous driving, which means what it says, and driving without reasonable consideration or driving without due care and attention. We are now putting the offence of driving in a dangerous manner in the very same category as driving without due care and attention. That does not make sense and it could operate to inflict an injustice on an accused person. There is inherent all through the Act the general discretion conferred on the court of imposing disqualification in any case in which is deems it necessary. I suggest to the Minister that he should accept my amendment and delete the amendment to section 36 of the Road Traffic Act, 1961.

The position is in fact that we have already approved sections 48 and 49. This merely enables the licence to be endorsed in respect of a first offence so that it will be known when the second offence is committed that disqualification will follow.

(Cavan): They do not say anything about disqualification. Surely this is the one that provides the penalty?

It is done in the Schedule. This amendment is merely to provide for endorsement of the licence. The position is that the Road Traffic Act, 1933, provided for two summary offences. One consisted of driving—

—without exercising reasonable consideration for persons, vehicles and other traffic.

The other involved driving—

—at a speed or in a manner which, having regard to all the circumstances of the case (including the nature, condition and use of the place and the amount of traffic which then actually is or might reasonably be expected then to be in the place) is dangerous to the public.

The really serious cases involving death were dealt with by a charge of manslaughter, but in fact it became virtually impossible to get a court to convict of manslaughter in a driving case. The Road Traffic Act, 1961, therefore provided for new offences. Under section 52 of the 1961 Act, it is an offence to drive a vehicle in a public place without due care and attention, or without reasonable consideration for other persons using the place. Under section 53 of the 1961 Act, it is an offence to drive a vehicle in a public place at a speed or in a manner which, having regard to all the circumstances of the case, is dangerous to the public. Where death or serious bodily harm is caused to another person, a section 53 offence is an indictable one; in other cases, it is a summary offence. The indictable offence, which carries very heavy penalties, was designed for use in the type of case in which a manslaughter charge would have been brought prior to 1961, although a charge of manslaughter is still taken in a very few bad cases.

On the whole, the provisions of the 1961 Act have not produced good results. Judges have tended to apply to all dangerous driving cases the criteria already applied by them to manslaughter charges. Juries have tended to acquit in all but the really bad cases, despite the evidence. The result is that, while summary charges of dangerous driving are on the whole dealt with reasonably well by the District Courts, the more serious cases are not so dealt with in the Circuit Court. The position appears to be that —I am sure Deputy Fitzpatrick knows this—the more serious the charge, the better the chance the accused has of being acquitted. Sections 48 and 49 are designed to deal with this situation. It can be seen from the figures of cases taken to court that the position will be that the really bad type of case, the case in which juries have tended to convict, will continue to be dealt with under section 53 of the 1961 Act as dangerous driving, either on indictment or summarily. It will be a matter for the State to select which cases they propose to proceed with by a charge of dangerous driving, that is, under section 53.

Up to now cases involving death or serious bodily harm were practically all dealt with by a charge of dangerous driving which was tried by a judge and jury. The only alternative to that was to base the charge on section 52, driving without due care and attention or without reasonable consideration. But the penalty for a section 52 offence is only the general penalty, the maximum for the first offence being a fine of only £20. The result of this was that there was a considerable gap between the dangerous driving charge, for which the maximum penalty is penal servitude up to five years and a fine of up to £500 or both, and a careless driving charge in cases involving death or serious bodily harm. The result of this big gap was that very little use was made of section 52 in such cases. Practically all cases were dealt with by the dangerous driving charge and in a very large proportion of these cases, the charge was not successful.

What is being done is that a new offence is being inserted by the Bill in an attempt to close this gap between dangerous driving and the lesser offence. What is being done is that the existing offence under section 52 is being broken up into two separate offences—driving without reasonable consideration which is in section 48 and driving without due care and attention which is in section 49. The position would be that the first offence, that of driving without reasonable consideration, which is in section 48 will be the equivalent of the present charge and the offence of driving without due care and attention in section 49 will be the more serious of the two, and we are providing for a heavier penalty in that case, a penalty which will be in the gap between the two existing penalties. This means that cases which do not involve an element of recklessness will now not be brought before the courts as dangerous driving charges. These were the type of cases in which the courts tended not to convict because of the fact that apparently the penalties were considered to be too heavy.

There is an obvious need for an intermediate offence which is being provided here. The careless driving and the inconsiderate driving are two distinct offences and they can be clearly differentiated. Careless driving is aimed at the person who is careless but not necessarily driving without due consideration for others, while the latter, the inconsiderate driving charge, covers the driver who may be quite careful in so far as his own safety is concerned but disregards the comfort and convenience of others. A decision as to which type of offence any particular case comes under is a matter for determination by the court. The first amendment that has been made here concerns the new offence of careless diving. It will be a more serious one than the existing offence and the penalties applying to it are being increased above those which apply to the existing offence under section 52. In line with this, it is considered that consequential disqualification should apply to this new offence also, that is, where a person is convicted twice in any three-year period. That is what is provided for by the third amendment to the Second Schedule of the 1961 Act.

I feel it is quite clear that a number of quite serious cases has escaped because of the fact that there was this big gap between the penalties for the two types of offence that existed up to now and it is necessary to have this third intermediate classification of careless driving.

I find myself in almost complete agreement with the Minister. I think it has become a public scandal that somebody who is involved in a minor offence can be tried and convicted while somebody who is involved in a more serious accident, because of the fact that juries seem to think that the penalties are too heavy, invariably gets away with it. What the Minister said is quite correct and the introduction of an intermediate charge may possibly be the solution to it. The only thing I am not in agreement with is the question of the suspension of the licence for the second offence in three years. The trouble about that is that it does not give the same punishment to everybody. A man who takes out his car once in six months and has an accident and then only takes it out again for a run on a Sunday maybe and has another accident loses his licence and is fined. That man has only the question of the fine to worry about, whereas a lorry-driver, a taxi-driver or even an ordinary person who uses his car to go to work will have the fine, plus the loss of his job, to worry about because he cannot carry on his job if he has not got a licence. Maybe I misunderstood what the Minister said or did not read the amendment correctly but that is the way it appears to me.

It is. Personally I feel that this is a desirable thing to provide for. It is not, as Deputy Tully says, that the second accident or even the second serious accident would entail this disqualification but the second conviction of driving in this manner. However, I will undertake to consider it between now and Report Stage. That is as far as I can go but I am not promising to agree to not having this provision. I do not know if Deputies would think that maybe a third offence might call for this rather than a second.

I would imagine that it would be a lot nearer the point. The Minister appreciates that the fellow who is dependent for his livelihood on a driver's licence——

If he is dependent for his livelihood on driving a vehicle, he should drive carefully. That is all the more reason why he should drive carefully.

I am sure the Minister agrees as well as everybody else that people have been unlucky. There are unlucky drivers.

Somebody does something stupid which may involve more than one person and very often a fellow can get involved and appear to be in the wrong because of something which somebody else did, and I would be very careful about doing this. If the Minister considers that even a third offence would be better it would be a help. Somebody who is caught three times can hardly claim that the long arm of coincidence put him in that position.

In view of the amendments which took away the power of the Minister for Justice to remit, I will consider relating it to a third offence rather than to a second one. Anyway I will consider it between now and Report Stage.

(Cavan): I do not think it is correct to say that we have imposed the penalties in section 48 and section 49. We have created an offence and we are now making provision for imposition of penalties. That is what I think and the explanatory memorandum would appear to bear me out because the section dealing with the Schedule, section 36, says:

Section 36 of the 1961 Act deals with endorsement of driving licences. The effect of the first amendment of this section (taken with the amendment of the Second Schedule to the 1961 Act) is to include in the offences to which mandatory endorsement applies, the new offence of careless driving.

That is what I understood and the White Paper seems to agree with me.

I do not think that Deputy Tully, with all due respect to him, clearly understands the position. The Minister gives as his reason for creating this new offence that the courts were slow to convict on serious charges. I presume that when he says that he is referring to juries. The only offence that is triable on indictment by jury is that of dangerous driving causing serious harm and that will still be tried by jury. We have the ordinary case of dangerous driving which was, and will continue to be, triable by the district justice. We have the offence of careless driving under the Act and we are now to have the offence of driving without reasonable consideration, section 48, and driving without due care, section 49.

The whole point of my amendment is to make it clear that I think that automatic disqualification for a second offence of driving without due care and attention is too severe. I am glad the Minister has at least undertaken to consider the matter between now and Report Stage. In making the case last evening, I referred to the fact that the Minister had amended the Bill, as originally introduced, by dropping section 22, which dealt with the power to remit certain disqualifications. I hope the Minister will consider the matter as he has promised and perhaps he will be good enough to let us know in advance if he intends to ease the position. If not, I will consider retabling this amendment on Report Stage.

Amendment, by leave, withdrawn.

I think amendment No. 34 was discussed with amendment No. 9.

I move amendment No. 34:

In page 36, to delete the second amendment of section 36 and to substitute the following:

"The deletion from subsections (3) (b) and (4) (b) of ‘or postponed' and ‘or postponement' in each place where they occur."

(Cavan): What is the effect of it?

This is the amendment which was consequential on section 22, which has been dropped.

Amendment agreed to.

I move amendment No. 35:

In page 37, after the third amendment of section 65, to insert the following:

"The substitution for subsection (1) (g) of the following:

‘(g) any person claiming in respect of an injury to himself or any other person in respect of which he would be entitled to claim occupational injuries benefit under the Social Welfare (Occupational Injuries) Act 1966, and which arose out of and in the course of the employment of the injured person by the insured in the relevant document.'"

Under section 65 (1) (g) of the 1961 Act, "excepted person" that is, a person who need not be covered by an approved policy of insurance, is defined as, inter alia,

any person claiming in respect of an injury to himself or any other person in respect of which he would be entitled to claim against the insured or the principal debtor in the relevant document and be awarded compensation or other relief under the Workmen's Compensation Acts, 1934 to 1955.

This subsection was based on the principle that it would be inappropriate (1) that persons already covered by the Workmen's Compensation Acts should be covered also by Road Traffic Act insurance and (2) that the law on compulsory insurance should differentiate between workmen's compensation claims on the basis of whether or not they were caused by a mechanically propelled vehicle. The provisions of the Social Welfare (Occupational Injuries) Act, 1966 (No. 16 of 1966) replaced the system of Workmen's Compensation as laid down in the Workmen's Compensation Acts, 1934 to 1955 as from 1st May, 1967. Under the 1966 Act, a system of State insurance enables a worker to claim against the State for benefits for death, injury or disease suffered in the course of employment.

So as to ensure that the introduction of the new system of occupational injuries insurance will not alter the status quo, in so far as the scope of road traffic insurance is concerned, it is necessary to insert a new paragraph in section 65 (1) of the 1961 Act to include as “excepted persons”, persons claiming in respect of an injury in respect of which occupational injuries benefit is payable.

(Cavan): At first sight, this appears a reasonable amendment. It seems really to be replacing the workmen's compensation code by the Occupational Injuries Act. Up to now compulsory road traffic insurance was not necessary in respect of an employee. That was the position and it was stated in the old Act that compulsory insurance was not necessary in the case of an employee. The idea behind this was that he was entitled to workmen's compensation. Under this measure notice has been taken of the fact that he is entitled to occupational injuries compensation and that therefore compulsory road traffic insurance should not be required in his case.

I find that in general practice this will place the workman in a less favourable position than he was under the old code. I am saying that for the reason that most employers were insured against their workmen's compensation liability to their employees but invariably the policy under which they were insured also covered the employers' common law liability to his employee. The result was that if the employee was injured in a road traffic accident while in his employer's vehicle, it was almost certain that if he was not the driver, the employer was guilty of negligence and he could then sue the employer at common law. Apart from the workmen's compensation he could receive, he could be awarded substantial damages at common law. It is less likely at the present time that employers will continue to insure their common law liability. It may be said that the employer will continue to insure against common law liability, but, as I say, it is less likely because they will be paying this 2/- a week and they will consider their workmen's compensation liability covered.

In those circumstances, the employer would not be insured against this common law liability to his employee and if he was not a mark, the workman who was seriously injured in a motor car the property of his employer would be confined to the comparatively small benefits under the Occupational Injuries Act. Unless his employer was a mark, he could not recover the substantial damages he might be entitled to at common law. That is a thought and I throw it out for consideration.

I am advised that the position which the Deputy fears will not arise and that this is purely a drafting amendment. I must say that I see the point Deputy Fitzpatrick raises. I will require to satisfy myself on this between now and Report Stage. I am advised that that position will not arise. I can only undertake to look into it and, on Report Stage, if I cannot assure Deputy Fitzpatrick that the situation he fears will not arise, then I shall have an amendment to cover it.

Does it appear that, in this case, even if an employer does insure under common law, an effort can be made to try to prove that, in fact, the occupational injuries cover is what he is entitled to; in other words, that the insurance companies would gain by it?

(Cavan): No, I do not think so.

The common law negligence would have to be proved, anyway.

Amendment agreed to.

I move amendment No. 36:

In page 38, the first amendment to section 95, to delete "‘traffic sign'" and to insert "‘road regulation'".

This is purely a drafting amendment to correct an error in the Bill. There is a drafting error in the amendment of section 95 of the 1961 Act in the Schedule to the Bill. As things stand, we say, in the first amendment:

(Section 95 is amended by) The insertion after "86," in the definition of "traffic sign” of “91,”,

What should be said is:

(Section 95 is amended by) The insertion after "86," in the definition of "road regulation” of “91,”.

Could the Minister let us have the actual section? What is the section? Has the Minister got it handy?

Section 95. It is a very long one.

The relevant lines will do.

The definition of "traffic sign" is as follows:

"traffic sign" means any sign, device, notice or roadway marking, or any instrument for giving signals by mechanical means, which does one or more of the following:

(a) gives information in regard to a public road, including the places to which it leads and the distances to or from such places,

(b) warns persons of danger in relation to a public road, or advises the precautions to be taken against such danger, or both,

(c) indicates the existence of a road regulation in relation to a public road, or implements such a regulation, or both;

I know what it refers to.

I shall have to read the whole lot.

(Cavan): It is two and a half pages. It is in the definition of a “traffic sign”, anyway.

The Minister knows of the trouble which has arisen over the "Stop" sign. On one occasion, the Minister said that "Stop" signs were not in order. Subsequently, it was agreed that "Stop" signs were in order. The Minister said they were not in order because they said "Stop" and there was no indication of what should happen after that. These signs still say "Stop". They do not say what is to be done next. I wonder if it has any relation to that kind of a sign.

Section 95 defines traffic signs, as I have already told the Deputy. It indicates the existence of a road regulation in relation to a public road. As defined early in the section. ‘road regulation" means an order, regulation, bye-law or rule, under an enactment (other than section 86, 93, 94 or 96 of this Act) relating to traffic on a road. It is intended to insert "91," after "86,". "Signs" which indicate the existence of (and/or implement) an order, regulation, bye-law or rule under section 86, 93, 94 or 96 of the 1961 Act do not come within the definition of "traffic sign" in section 95. Signs under these sections are of an individual character (bridge notices under section 93 and "road closed" notices under section 94) or are provided by authorities other than road authorities (bus stop signs under section 86) or are different in some other respect from normal signs (as in the case of signs carried by traffic wardens). It is not possible, therefore, to apply the general provisions of section 95 of the 1961 Act relating to the provision of traffic signs to these signs. An amendment of section 91 of the 1961 Act (effected by the Schedule to the Bill) will enable the Garda to use portable signs on special occasions. It is necessary to provide that these portable signs will not come within the definition of "traffic sign". The first amendment of section 95 provides for this, namely, that "portable signs" will not come within the definition of "traffic signs".

Amendment agreed to.

I move amendment No. 37:

In page 38, the last amendment to section 101, to delete "1931 and 1958" and to insert "1931 to 1967".

This amendment is necessary because of the new collective citation of the Landlord and Tenant Acts provided by the Landlord and Tenant (Ground Rents) Act, 1967, which became law since this Bill was introduced.

(Cavan): The effect of this amendment—maybe it is the existing law but it is restating it—is to say that the running of a car park is not a business. It says the operation of a car park including the operation of facilities therefor on or in property leased by a local authority shall not be deemed to be a business within the meaning of the Landlord and Tenant Acts. I think the meaning of that is that if a person leases a car park or leases property from a local authority and converts it into a car park and builds up considerable good-will and takes a lease, say, for ten years, then, at the end of ten years, he is not entitled to the benefit of the provisions of the Landlord and Tenant Act entitling him to a new lease or compensation for distrubance.

I think it cannot reasonably be stated, in the year 1968, that the occupation of running a car park is not a business. Of course it is a business and it will become perhaps big business as the years go on. I think such a lessee should have the rights under the Landlord and Tenant Act, 1931, that he would have were is not for this exclusion. There might be some sort of a case to be made for not renewing the lease but the Landlord and Tenant Act, 1931, takes care of that and makes provision for payment of compensation. If we confirm the law here now as this, we shall have a case where a man could take a lease of a barren bit of land from a local authority, spend a good bit of money on it, build up good-will and then be thrown out at the expiration of his lease without any right to renewal and without any compensation for disturbance. This is out of line with all the provisions of the Landlord and Tenant Act.

I do not think so. These car parks are leased for a temporary period by a local authority such as Dublin Corporation and have been portions of sites earmarked for municipal housing which are put to this use for a temporary period while the corporation is waiting to acquire the remainder of the property which it is necessary to acquire in order to provide the housing. This is a reasonable provision to make. It is designed to ensure that where a local authority lets a car park to a private concern it will be in a position to repossess the car park or to convert it to alternative use should it be desired to follow this course. Under the 1961 Act, section 101, subsection (10), the local authority may, with the consent of the Minister, lease a car park or any part of it subject to such conditions as it may think proper. It is obviously desirable to ensure that where a local authority lets a car park to a private concern for operation for a period as a car park it will be in a position to resume the car park and convert it to alternative use. The operation of the Landlord and Tenant Acts could defeat this by providing for rights to have leases renewed for certain periods which I think is what Deputy Fitzpatrick has suggested.

(Cavan): Or compensation.

The only purpose that could be served by Deputy Fitzpatrick's suggestion is that these sites would remain as derelict sites and be completely unused until such time as the local authority were in a position to go ahead with their housing operations.

I am inclined to agree with the Minister's idea in regard to temporary car parks. There are many of them on derelict sites throughout the city and elsewhere. If that is what is intended, we concede. But, supposing the corporation decide that the traffic problem in the city has become such a menace, particularly with these new officers operating, and car park space is required and the corporation decide to lease to some business firm a site for a multi-storey car park, which is quite probable, is that covered or will this preclude them from doing that?

No; it will not preclude them. Obviously, in such a case nobody would take such a lease to provide a multi-storey car park unless safeguards were written into it.

Can they be written into it?

Yes. The local authority would be at liberty to do this in appropriate cases.

(Cavan): That will be all right as long as the lease lasts.

They can insert provisions in the lease.

Will it stop them from having it renewed, supposing it is a 30 year lease?

They can insert provisions granting to the licensee the rights normally granted under the Acts.

(Cavan): The Minister, knowingly or otherwise, used a word in his explanation—“temporary”. Of course, the Landlord and Tenant Act has already dealt with conditions like that and leases for temporary convenience are not within the terms of the Landlord and Tenant Act at all. If it is really temporary lettings such as Deputy Tully has spoken about that the Minister is trying to safeguard, it is not necessary. I would thoroughly agree that if an urban council, Dublin Corporation or any other corporation has a derelict site it does not know what it will do with at the moment and, taking the long term view, other property will be available in ten or 15 years, it would be unreasonable permanently to deprive the local authority of that property, but there is a way of dealing with that already, that is, to declare in the lease that this is a letting for temporary convenience and the Landlord and Tenant Act then specifically excludes such a temporary letting or leasing from its provisions.

But there is no doubt about this: if the measure goes through as suggested, it will apply to all leases, whether they are genuine and bona fide temporary leases such as the Minister and Deputy Tully have spoken about or whether they are genuine leases taken for 21 years. When granted, 21 years seems a very long time but we all know how quickly such leases become short leases and a young man taking a lease for 21 years may say that it will do for his lifetime but soon finds that ten years have expired and if he goes to sell it he is operating on a short lease with no power of renewal.

The danger is that it will discourage the genuine acquisition of land for this very desirable and even necessary car parking. I am all with the Minister as far as temporary lettings are concerned of bits of land the local authority do not know what they want to do with. It may be a very good thing to let them out for car parking, but in that case the person who would take them would not spend money on them but would leave them, as some of them are left around the city, as unsightly dumps, half-levelled out and used as car parks. That is not the type of business I have in mind. I have raised the matter and I cannot do any more.

I am advised that this provision is necessary, definitely necessary, for temporary leases of sites as car parks. Dublin Corporation have been pressing for this very positively. They have asked for this provision.

(Cavan): If they do their leases properly, it will not be a bit necessary.

They have asked for this and that is my advice—that it is necessary.

Amendment put and agreed to.

(Cavan): I move amendment No. 38:

In page 38, to delete the second amendment of section 104.

Section 104 of the Road Traffic Act, 1961, provides that in certain offences under the Act a prosecution does not lie unless the accused person is warned at the time of the incident giving rise to the prosecution or within 24 hours after it that the question of prosecuting him for the offence under the Act would be considered or unless within 14 days after the commission of the offence a notice of intention to prosecute has been served or a summons has been served.

This has been the law in this country for a very long time. It was the law under the old Road Traffic Act and it was again enacted in the Road Traffic Act of 1961. Now we are proposing by this amendment to water that down a good bit and to say that a person can still be prosecuted, presumably six months after the occurrence, even if he was not warned at the time of the accident or within 24 hours of it that a prosecution would be brought, or even if notice of intention to prosecute or a summons has not been served within 14 days. We are providing here that, notwithstanding that failure, the accused was at all material times aware of the occurrence in respect of which the prosecution for such offence is brought.

If I understand that amendment correctly, it is to do away with the necessity of a warning or a notice of intention to prosecute. A person could be aware of the occurrence giving rise to the prosecution, but he might not have regarded it as an offence under this Act, or he might not have thought anything about it. The whole object of the warning or the notice of intention to prosecute was to put the accused person on notice within a reasonable time after the occurrence that he was going to be prosecuted and to give him an opportunity of thinking about it and, perhaps, talking to his witnessess about it. That has been thought necessary since the 1930s, and it is difficult to see why it is necessary to bring in this amendment which is going to water down this protection which was afforded to the accused person to such an extent that it will be really useless.

Section 104 contains a proviso the effect of which is that failure to comply with the requirements of the section in regard to notice in regard to an offence shall not be a bar to conviction in certain cases. The second amendment of section 104 extends the cases in which a failure to give notice will not preclude a conviction by including cases in which, notwithstanding the failure, the accused was at all material times aware of the occurrence in respect of which the prosecution was brought. In a recent court case, the judge ruled that to comply with section 104 a warning, whether verbal or in writing, should be given as a separate and distinct matter in a case in which a person is arrested and charged with an offence. This was obviously based on a literal interpretation of the provisions of section 104 and, I think, makes nonsense of the clear intention of the section. This amendment should make a warning unnecessary in such a case. If a person is arrested and charged, he can hardly claim he was unaware of the occurrence.

The amendment is also required for cases in which the defendant, though he admits to being perfectly well aware of the occurrence, relies on a minor technical error in the notice in order to escape conviction. If it is quite clear that the person was well aware of the occurrence, this should not be necessary. Of course, it will be a matter for the courts to decide whether or not the person was aware of the occurrence, and I think we can rely on the courts to see that lack of formal notice will not in any particular case prejudice the defendant in preparing his defence.

(Cavan): I agree in the case mentioned by the Minister, where the court held that, although a person was arrested and charged, probably within hours after the offence, a warning was necessary, that that was finding a flaw in the section. But here we are availing of that decision to go much further than is necessary.

What else can you do?

(Cavan): I will tell you just in a second what you can do to cure that situation. There is already a provision in section 104 which says that where a person is charged with an offence under section 47, 52 or 53 of this Act, he shall not be convicted of the offence unless either “(a) he was warned at the time....” or “(b) within 14 days after the commission of the offence a summons for the offence was served on him”. In order to cure the case raised, all you had to do was to add to that: “or a charge has been preferred against him”, and that was that fixed up. However, here we are availing of a court decision virtually to wipe out protection afforded by the verbal warning or service of the notice of intention to prosecute. I think it is going too far. I agree it will be a matter of defence for the accused to say that he was not aware of it at all, but he might not be able truthfully to say that; but he might be in a position truthfully to say that while he was aware of the occurrence, he did not regard it as a breach of any of the provisions of the Act and that by the time he got the summons, nearly six months afterwards, he was so hazy about the whole thing that he could not put forward his defence. Will that person have a defence? That is what I want to know.

The courts can be depended upon in a case like that.

(Cavan): The courts will have to operate within the meaning of this amendment: “not-withstanding the failure, the accused was at all material times aware of the occurrence.” He was aware of the occurrence, but he did not look upon it as serious. It is now an offence and five or six months have elapsed.

Surely that will mean "aware of the details of the occurrence".

He was so drunk he would not know what happened.

(Cavan): I do not think “drunk” is one of the cases here. I do not think he has to get notice in a drunken case.

He would be charged with an offence. He could easily say he did not know what happened.

(Cavan): The warning is necessary only in certain cases.

He is not being charged with being drunk.

(Cavan): This amendment is another attempt to water down defence and to move a wee bit towards the situation where a person is guilty until he proves himself innocent. We are moving in that direction.

I do not see how this section can be interpreted in that way.

(Cavan): Slowly, I admit, but the trend is there. Again I think it my duty to point that out and to ask the Minister to reconsider the amendment.

Deputy Fitzpatrick knows that members of his profession are very skilful at finding these loopholes. I have referred to only one loophole that has been found, and I do not know what the ingenuity of people like Deputy Fitzpatrick may find in the future. However, the courts can be relied upon to decide in a reasonable way whether or not the person was at all material times aware of the occurrence.

(Cavan): The courts can only interpret the section that is there.

Yes, but if they interpret it reasonably, as I think they will, there is no need to have any fears that there is a watering down of the defendant's rights.

Is the amendment being withdrawn?

(Cavan): I shall withdraw and reconsider it.

Amendment, by leave, withdrawn.

I move amendment No. 39:

In page 38, after the amendments to section 104, to insert the following:

Section 106.

The substitution for subsection (1) (d) of the following:

‘(d) if—

(i) injury is caused to property other than that of the driver of the vehicle and for any reason he or, if he is killed or incapacitated, the person then in charge of the vehicle does not at the place of the occurrence give the appropriate information to a person entitled under this section to demand it, or

(ii) injury is caused to a person other than the driver of the vehicle,

the driver of the vehicle or, if he is killed or incapacitated, the person then in charge of the vehicle shall, unless he has already given the appropriate information to a member of the Garda Síochána, report the occurrence as soon as possible to such a member and, if necessary, shall go for that purpose to the nearest convenient Garda station and also give on demand the appropriate information to the member.’

The purpose of this amendment is to tighten up the law on accident reporting. At present, a person who is involved in an accident must, in addition to stopping and keeping his vehicle at the scene for a reasonable period, give on demand his name and address, particulars of his insurance, etc., to a garda if he is present or to a person entitled under subsection (5) of the section to demand that information. If a person entitled to demand the appropriate information is present but does not demand it, the person involved in the accident is under no obligation to report the accident to the Garda. The amendment of section 106 will require a person who has been involved in an accident and who, for any reason, does not give the appropriate information at the scene, to report the occurrence to the Garda. It will also impose a duty to report all accidents involving personal injury to the Garda. The majority of these accidents come to the notice of the Garda at present but it is considered that there should be a clear duty to report all such accidents.

(Cavan): This certainly makes a substantial change in the law. The Minister has said that at present the only obligation on a motorist is to stop and remain at the scene of the accident for a reasonable time, and give a third party an opportunity of finding out such particulars as he is entitled to. I have an open mind on this. I cannot say I am against it so long as we are clear on it, and the public will become aware of what is involved. It now means that after an accident, unless a person has given the necessary particulars on the spot, he must go to the Garda. Apparently the Garda now do not want to hear about accidents that do not involve personal injury. They do not seem to think they are very concerned with them. It is also the case that it imposes—if I understand the Minister correctly—a duty to report an accident involving personal injury to the Garda, whether or not the appropriate information has been given to a third party on the spot. It will lead to more prosecutions anyway, I am sure.

Amendment agreed to.

(Cavan): I think amendment No. 40 has been dealt with. It deals with the offence of refusing to take a blood test. It has already been dealt with.

There is one point I should like the Minister to clarify. The Bill lays down that if the concentration of alcohol in the blood exceeds 125 milligrammes per 100 millilitres of blood, it is an offence. Would the Minister tell me how he proposes to see that this test is carried out? Is it not correct that the highest test that can be carried out is up to 80 milligrammes of alcohol, and that there is no known method of testing above that concentration? Is the Minister aware of that?

No, that is not correct.

I have expert advice that it is correct. Would the Minister say if he has ever known of any apparatus which will test up to 125 milligrammes?

There is, of course.

Is the Minister aware of that? Can the Minister categorically state that it is physically possible?

Of course, it is.

Even if I state that it is not, and that experts tell me that it is not?

An apparatus designed to test up to 80 milligrammes per 100 millilitres is made to suit particular requirements such as the requirements they have in Great Britain. Our requirement will be for 125 milligrammes per 100 millilitres.

Has the Minister checked to find out if it is technically possible to produce such an apparatus?

Of course, it is.

My information is that it is not at present technically possible to do this, but if the Minister says it is, I will accept his word.

Presumably, the one in use in Britain has been designed especially for them. Our requirements will be different.

My assertion is that it is not possible to produce an apparatus which will test up to 125 milligrammes. Can the Minister say whether he is aware that such an apparatus is in existence? I accept his word, but my information is—and it is pretty good—that such an apparatus does not exist and is not at present technically possible.

My information is that it is.

I accept what the Minister says, but he will not mind if I put down a question at a later stage if it proves that that is not so.

Amendment No. 40 not moved.
Question proposed: "That the Schedule, as amended, be the Schedule to the Bill."

(Cavan): I should like to repeat some of the arguments I made before. The Schedule provides for the inflicting of serious penalties on a person who refuses, in the circumstances outlined, to give a sample of his blood. It imposes the same penalties for that offence as for the offence of driving while impaired within the meaning of the Act. I think that is going much too far and I want to register the strongest protest against it. I believe it is unconstitutional. I know the Minister has been advised that it is not unconstitutional, but Ministers have received advice of that sort before and the courts decided against it. I suppose that if the Bill becomes law as it is, we will have to patiently await a decision of the High Court or the Supreme Court on this and other provisions. I do not think we will have to wait too long.

Irrespective of whether the provision is constitutional or unconstitutional, we believe it is highly undesirable that we should create here the criminal offence of failing to submit, in the circumstances outlined in the section, to a minor surgical operation to provide a couple of spoonsful of blood, as the Minister said, and to punish a person who, for one reason or another, refuses to submit to what might be for him or her an ordeal, by heavy fines, imprisonment and consequential disqualification. Only if there were no other way to attain the objective behind this Bill could or should this House agree to those proposals.

I gave the Minister an alternative by agreeing to make such a refusal prima facie evidence that the person was unfit to drive a car by shifting over to the accused the onus of proving that he was in fact fit to drive a car within the meaning of the Act. I say that would have provided the Minister with much more than adequate machinery to clear the roads of the impaired driver. I am convinced that only after that had failed should the Minister come to this House seeking the extreme measures which he has asked for, especially as he was advised by a commission of experts which his predecessor set up that what he is doing was unnecessary and undesirable. I put forward that argument at greater length on the sections creating the offences but I think it only right to repeat it on the Schedule which provides the penalty.

I am glad to see in the Schedule, as amended, that the Minister has deleted section 22 from the Bill as drafted. It was a section which restored to the Minister power to restore licences taken away. I think public opinion demanded that and I am glad the Minister has acceded to it. Most of the other things I wanted to say have been said on amendments and in some cases the Minister has undertaken to look into them. I think the proposal in the Schedule, as I have said, will place the employee in a less favourable position than he is in at present in that he may find himself, in respect of his common law rights, pursuing an uninsured employer. I am glad the Minister has agreed to have a look at that.

We also raised the question of the consequential disqualification for the second conviction on the comparatively trivial offence of driving without due care and attention. I think the Minister now appreciates the serious consequences that might have and again I am glad that he has agreed to look into that. We have dealt with most of the other matters in the Bill as we went through it and we shall deal with any outstanding ones on Report Stage which I hope will not be taken for a reasonable time.

Apart from the many matters we have dealt with in Committee, in regard to the matters of principle in the Bill and the proposals—which are also dealt with in the Schedule—to create the absolute offence of driving with a certain concentration of alcohol in the blood and to impose heavy penalties for that, I must go on record as saying that I disagree with them and that my Party disagree with them. We believe the alternatives suggested by my Party through me were adequate and should have been accepted.

Question put and agreed to.
Title agreed to.
Bill reported with amendments.

When is it proposed to take the Report Stage?

Deputy Fitzpatrick asked for a reasonable time and I have agreed to consider a number of matters. What does the Deputy suggest?

(Cavan): Anything in reason. Is a month too long?

Say three weeks. We should have the referendum out of the way by then.

(Cavan): The Minister is more optimistic than I am.

Are we to take it that the Minister is thinking of withdrawing it——

I said I thought the referendum would be disposed of by then.

——because that is the only way you would get it out of the way.

Report Stage ordered for Thursday, 14th March, 1968.
Top
Share