Introduction of New Road Traffic (no.2) Act 2014

23rd December 2014

The Minister for Transport introduced to the Houses of the Oireachtas Emergency Legislation to deal with the latest problem with the imposition of penalty points on motorists licences.  On this occasion the glitch or technical error came from within the Department and not as a result of any challenge in the Courts or any observations made by external commentators.    It effects seventy six thousand motorists involved and the imposition of over two hundred thousand penalty points and every motorist detected of a penalty point offence and all penalty points since the 1st of August 2014 to date.

Two problems have been identified:

1)   The Road Traffic Act 2002 created penalty point offences. It is set out in the Schedule in the First Schedule – Part 1 a total of sixteen originating offences which carried upon them penalty points.  At column 4 of the First Schedule – Part 1 reference was made to penalty points being imposed on payment of a Fixed Charge Notice.  Some of these categories were left blank meaning that there was no statutory provision for the imposition of a penalty point on a Notice only.  The practical aspect of this, up until now has been that such offences if prosecuted by An Garda Siochana go straight to  Summons meaning that once an offence is detected the Gardai prosecute the motorist through the Courts without reference to a Fixed Charge – Pre  Court procedure.  In the original Road Traffic Act, 2002 of the sixteen categories provided for eight of them or 50% were not considered to be included as part of the Fixed Charge Penalty process.  All sixteen categories were provided for with penalty points imposed on conviction in a Court.  The Road Traffic Act, 2014 through the Road Traffic, 2014 (certain provisions) (commencement) Order 2014 – S.I. No 147 of 2014 which was signed on the 20th of March 2014 and which came into effect on the 1st of August 2014 provided for the commencement of the two offences referred to, namely “using a vehicle without a certificate” and “parking vehicle in a dangerous position”. This captured then the two offences within the Fixed Charge system, but even though there were specifically not provided for in the First Schedule –Part 1 of the Road Traffic Act, 2002.  Until such time as the Bill is enacted this remains the current position.

2)   Under Section 8 of the Road Traffic Act, 2014 there is reference to previous statutory provisions contained in Section 37 and Section 44 of the Road Traffic Act, 2010.  Section 37 and 44 must be read in context of Section 35 of the Road Traffic Act, 2010.  This updates the statutory provisions regarding the service of Fixed Charge Notices.  Section 35 is not an issue here.  Section 37 of the Road Traffic Act, 2010 however deals with the payment of fines where the motorist acknowledges wrong doing and discharges the fine and accepts the penalty points within the statutory fifty fix days.  Section 37 of the Road Traffic Act, 2010 has not been enacted.  Section 44 of the Road Traffic Act, 2010 deals with the payment of a Fixed Charge and the service of a Summons.  This allows a motorist to pay a fine and accept the endorsement of penalty points on a licence beyond the expiry of the statutory fifty six days and where a Summons has issued, but prior to the Summons being lodged and entered in Court.  This again is a further mechanism in which it is proposed that a motorist can accept the wrong doing, but not have to appear in Court.  Section 44 of the Road Traffic Act, 2014 has not been commenced.  Section 8 of the Road Traffic Act, 2014 which was commenced on the 1st of August 2014 under Statutory Instrument 147 of 2014 refers to both Section 37 and 44 of The Road Traffic Act, 2002. As neither of these Sections of the Road Traffic Act, 2010 have been enacted any reference in the subsequent and amending legislation of Section 8 of the Road Traffic Act, 2014 is erroneous as it seeks to evoke provisions which have not yet been commenced.  This again is identified as “simply a legislative error”.

The press release indicated that “the issue has no bearing on penalty points on foot of court decisions, nor on fines paid on foot of Fixed Charge Notices for motoring offences. Penalty points were endorsed since August in full in accordance with the intent and spirit of the law and in good faith following receipt of the offences from individuals paying the relevant fines and accepting the penalty points”  This statement if incorrect and can be referenced to specific instances.  We now know, as identified in the 2nd issue that motorists accepting responsibility for wrong doing did so on the basis that while they believe that their own acts were unlawful, the statutory provisions prevailing at the time of the commission of the offence did not render their behaviour unlawful and by consequence therefore there is no statutory basis upon which to receive fines from those motorists and to impose penalty points upon their licences.  Any prospective legislation therefore must restore those motorists to the position as if there was no law in existence, such as the case we have here.

In practical terms this has individual and huge effects in relation to people’s individual driving licences.  It is understood that there are forty nine persons who have now exceeded the twelve / seven maximum threshold prior to the imposition of a period of disqualification.  If those people have voluntarily taken themselves off the road they have done so in error believing the law to be stateable and in effect whereas it is not.  On the basis now that the earliest available opportunity for the imposition of those penalty points is the date of the enactment of the Bill (if that view is taken) then they are going to be prejudiced by having to wait a number of months, and be extra penalised as a result of this legislative error.

Individuals also with the imposition of three penalty points have had to notify their insurance company and they are at a financial loss if in the event that the insurance company charges them additional premium for accumulating additional penalty points on their driving licence.  All of this was done as well at a time when the motorists believed that they had committed an offence, whereas in fact no penalty can now be imposed on a prospective basis.

The scope of this error extends to the seventy six thousand motorists who have been identified and the imposition of over two hundred thousand penalty points. Each and every one of those persons is now being affected by this.

You also then have the position where motorists may have elected not to pay the fine and accept their penalty points within the fifty six day period and sought an opportunity to challenge the prosecution before the Courts.  It is unclear how many of those seventy six thousand motorists that have been detected and with a virtual two hundred thousand penalty points being imposed have not paid, and where the offence remains “alive”.  Of that seventy six thousand figure you then have motorists who wish to come before the Courts. There is an obligation under the Road Traffic Act, 2002 that where on the expiration of the fifty six day period A Summons shall issue. This therefore means that all of those persons who have not elected to pay the fine will now come before the Courts and they will be challenging before the Courts the ability of the Minister and the Department to record any kind of conviction in circumstances where it is readily acknowledged that there is no statutory provision at the time to impose any penalty.  This therefore means that in the pipeline there is now a certain defiant figure of persons who will be coming before the Courts and where this issue is going to be litigated.

There was a very worrying comment about the period within which the error was found and the publishing of this Bill. The Minister says in the press release “when I became aware of this error last Wednesday week, I instructed that no further points should be endorsed on licences pending the resolution of the difficulties”. If this is correct the Minister has acted ultra vires of his powers. There is no statutory authority for the Minister in any set of circumstances to instruct his officials not to impose penalty points on motorists licences and to do so is entirely incorrect and is an incorrect statement of the law.

Despite the problems highlighted the Bill has now been enacted and will soon become law.

Listen in to the discussion on this topic between Timmy Dooley TD, Opposition Spokesman on Transport and Evan O’Dwyer on Today FM Last Word with Matt Cooper here