Barry O'Sullivan v The Superintendent in Charge of the Garda Station, Togher Garda Station, Cork

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 01 April 2008
• Neutral Citation: [2008] IEHC 78
• Docket Number: [2008 Nos. 57SS & 60SS]
• Court: High Court
• Date: 01 April 2008

O'Sullivan v Superintendent in Charge of Togher Garda Station, Cork & Creighton v DPP

IN THE MATTER OF A CONSULTATIVE CASE STATED

BETWEEN

BARRY O'SULLIVAN

APPELLANT

AND

THE SUPERINTENDENT IN CHARGE OF THE GARDA STATION, TOGHER GARDA STATION, CORK

RESPONDENT

AND

IN THE MATTER OF A CONSULTATIVE CASE STATED

BETWEEN

ANDREW CREIGHTON

APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

[2008] IEHC 78

[No. 57 S.S./2008]

[No. 60 S.S./2008]

THE HIGH COURT

CRIMINAL LAW

Road Traffic Offences

Conviction - Consequential disqualification order - Application for removal of disqualification - District Court jurisdiction - Whether District Court deprived of jurisdiction to remove disqualification order - Road Traffic Act 1961 (No 24), ss 29 and 49 - Courts (Supplemental Provisions) Act 1961 (No 39), s 52 - Interpretation Act 2005 (No 23), s 27 - Road Traffic Act 2006 (No 23), s 7 - European Convention on the Protection of Human Rights and Fundamental Freedoms 1950, article 7 - Case stated answered in favour of applicant (2008/57SS & 60SS - Dunne J - 1/4/2008) [2008] IEHC 78

O'Sullivan v Superintendent Togher Garda Station

STATUTORY INTERPRETATION

Retrospective effect

Amendment - Commencement - Right accrued - Right acquired - Whether commencement of amendment could have effect of removing right accrued or right acquired - Interpretation Act 2005 (No 23), s 27 - Case stated answered in favour of applicant (2008/57SS & 60SS - Dunne J - 1/4/2008) [2008] IEHC 78

O'Sullivan v Superintendent Togher Garda Station

Facts: A District Judge posed a case stated to the High Court as to whether the jurisdiction to remove disqualifications imposed for a road traffic offence, as contained in s. 29 of the Road Traffic Act 1961, was affected by s. 7 of the Road Traffic Act, 2006, so as to remove the Court of its discretion. The applicant alleged that he had a legitimate expectation that he would be entitled to make an application for restoration of a driving licence. The respondent contended that the wording of the Act of 2006 was clear and undisputed. An issue arose as to the application of the Interpretation Act 2005.

Held by Dunne J. that the effect of the provisions of the new Act was to remove the provision permitting an individual to apply to Court to remove a disqualification imposed. The narrow interpretation asserted for by the respondent could not be adopted. The right to bring the application was "acquired" within the meaning of s. 27 of the Interpretation Act 2005. The applicants had acquired the right to apply for a restoration of their application.

Reporter: E.F

ROAD TRAFFIC ACT 1961 S29(1)(a)

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 2006 S7

ROAD TRAFFIC ACT 2006 (COMMENCEMENT) ORDER 2007 SI 86/2007

ROAD TRAFFIC ACT 1961 S29

INTERPRETATION ACT 2005 S27

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1995 S10

CONROY v AG 1965 IR 411

INTERPRETATION ACT 2005 S27(1)(b)

INTERPRETATION ACT 2005 S27(1)(c)

INTERPRETATION ACT 2005 S27(1)(d)

INTERPRETATION ACT 2005 S27(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 7

INTERPRETATION ACT 2005 S27(1)(a)

INTERPRETATION ACT 2005 S27(1)(e)

1 Ms. Justice Dunneon the 1st day of, April 2008

2 Two consultative cases stated came before me for hearing in relation to an identical issue of law. In each case the point of law was stated by David Riordan,Judge of the District Court. I propose to refer briefly to the details of the cases stated and to the facts that are relevant in each case.

Barry O'Sullivan

3 In this case an application came before the learned District Judge on the 10 ^th December, 2007, pursuant to the provisions of s. 29(l)(a) of the Road Traffic Act, 1961 as amended in circumstances where the applicant was convicted of an offence contrary to s. 49(4) of the Road Traffic Act, 1961 as amended, on the 1 ^st December, 2005, arising out of an offence that occurred on the 6 ^th October, 2002, which conviction was appealed to the Circuit Court which affirmed the conviction and penalty by way of order dated the 15 ^th June, 2006, to take affect as and from that date. Such a conviction attracts a consequential disqualification order and accordingly, in addition to the penalty imposed, the applicant was disqualified from driving for two years as and from the 16 ^th June, 2006. On the 14 ^th November, 2007, the applicant issued an application for the removal of the disqualification pursuant to the provisions of s. 29(1)(a) of the above entitled 1961 Act, as amended.

4 The learned District Judge sought the opinion of the High Court on the case set out in the consultative case stated and I propose to quote from the same:-

5 2 "5. On the 10 ^th day of December, 2007, evidence was given by the applicant to me to the effect that he had paid the monetary fine that had been imposed upon him by virtue of the District Court conviction (as affirmed by the Circuit Court order); that he had not driven whilst disqualified; and that his licence had been handed in to the local relevant authority to be endorsed; he also produced evidence which I accepted from his employerconfirming that his position of employment could no longer be maintained unless his driving licence was restored to him. He further gave evidence to the effect that he was suffering specific hardship by virtue of the fact that he was separated and that he could not see his teenage daughters regularly and whenever he did see them, he could not mobilise with them in view of the fact that he was disqualified from driving. The respondent did not cross examine.

6 6. I found as a fact that the applicant had suffered the alleged hardship and that he had paid the monetary fine, handed up his licence for endorsement and had not driven while disqualified. I was satisfied and expressly found that the application was entirely meritorious and but for the legal issue arising in submission (referred to below), would in the normal case have justified restoration of the driving licence.

7 7. The legal issue that arose as referred to above was that since the conviction of the accused in the District Court on 1 ^st December, 2005, the Road Traffic Act, 2006 was enacted and in particular, on the 5 ^th March, 2007, s. 7 of the said 2006 Act, was commenced by virtue of SI 86/2007 being the Road Traffic Act, 2006 (commencement) order 2007. Section 7 of the 2006 Act provided for a substituted provision for s. 29 of the principal Act.

8 8. It was submitted to me on behalf of the respondent that the court had no jurisdiction to remove a disqualification order inview of the express provisions of the now substituted, s. 29 of the Road Traffic Act 1961 which specifically refers to a disqualification order made whether "before or after the commencement of s. 7 of the Road Traffic Act, 2006".

9 9. In response, David Browne, solicitor for the applicant referred to s. 27 of the Interpretation Act, 2005 and urged upon me that the effect of s. 7 of the 2006 Act, was to repeal the then existing provision in s.29 of the 1961 Act and substitute in its place a new statutory provision and by virtue of s. 27 of the Interpretation Act, 2005, this repeal of the former s. 29 did not and could not affect any right, privilege, ... accrued under the former provisions of s. 29ofthe 1961 Act."

10 Therefore, the learned District Judge being of the opinion that questions of law arise on the foregoing case referred the following question to the High Court for determination namely:-

"Has the enactment of s. 7 of the Road Traffic Act, 2006 which was commenced on the 5 ^th March, 2007, deprived the District Court of its jurisdiction pursuant to the provisions of s. 29 of the Road Traffic Act, 1961 as amended, to remove a disqualification order imposed prior to the 5 ^th March, 2007, for two years?"

Andrew Creighton

11 The first point to note in respect of this case is that the respondent was incorrectly named as the Director of Public Prosecutions. No point turned on that particular issue. It appears from the consultative case stated in respect of thisapplicant that the accused was convicted of an offence contrary to the s. 49(4) of the Road Traffic Act 1961 as inserted by s. 10 of the Road Traffic Act, 1995, on the 5 ^th day of May, 2006, arising out of an offence that occurred on the 25 ^th March, 2005 which conviction was appealed to the Circuit Court and subsequently affirmed by the Circuit Court by way of order on the 13 ^th December, 2006, at which time a consequential disqualification order was made for a period of two years to take effect from the 13 ^th December, 2006. I do not propose to set out in detail the facts contained in the consultative case stated in respect of this applicant save to say that on the 10 ^th December, 2007 at which time an application was made for the restoration of the driving licence of the applicant, the learned District Judge found as a matter of fact that the applicant had paid the monetary fine that was imposed and that he had handed his licence in to the local authority in order that it would be endorsed. The applicant gave evidence that he required his driving licence to be restored to him as he had a specific need by virtue of his employment. He gave evidence that he carried on business as a letting agent and needed to drive in relation to his business. The learned District Judge was satisfied that he should make an order for the restoration of the applicant's driving licence save for the question of law which arises herein. The legal issue that has arisen in this case is identical to that which arises in the case of Barry O'Sullivan. The submissions were similar, but the questions of law arising were stated in a slightly different form and for ease of reference I think it would be useful to set out the questions herein in full:-

12 a "(a) Can the applicant rely...