DPP (At the Suit of Garda Elizabeth McDonagh) v Sherlock

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 26 June 2020
• Neutral Citation: [2020] IEHC 362
• Date: 26 June 2020
• Court: High Court
• Docket Number: [2019 No. 1359 SS]

IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA ELIZABETH MCDONAGH)

PROSECUTOR

AND

MICHAEL SHERLOCK

ACCUSED

[2020] IEHC 362

Richard Humphreys J.

[2019 No. 1359 SS]

[District Court Record 2018 No. 207003]

THE HIGH COURT

Case stated – Driving without insurance – Road Traffic Act 1961 s. 56 – District judge signed a case stated – Whether the District judge was correct in his view that the charge against the accused of driving without insurance should be upheld

Facts: The accused, Mr Sherlock, on 28th September, 2018, was stopped by Gardaí at Deerpark Estate, Ennistymon, County Clare. At that time, he was the holder of a learner driver permit, but not a driving licence. He was not accompanied by a qualified driver. On 12th November, 2018 a summons was applied for, alleging that in a public place the accused had used a mechanically propelled vehicle without insurance contrary to s. 56(1) and (3) of the Road Traffic Act 1961, as amended by s. 18 of the Road Traffic Act 2006. That summons was first listed on 12th March, 2019 and came on for hearing on 7th April, 2019 in District Court District No. 12, sitting at the District Court in Ennis, County Clare. The accused produced a policy of insurance which on its face covered driving a mechanically propelled vehicle in a public place on the date in question. The investigating Garda gave evidence of contacting the insurer and was advised that in the event of loss to a third-party arising from the driving of the accused “the insurer would compensate the third party but would seek to recover the cost of same from the accused”. On 13th November, 2019 the judge signed a case stated pursuant to s. 52(1) of the Courts (Supplemental Provisions) Act 1961 setting out that he formed the view that: (i) for the relevant policy of insurance to be operative the accused needed to have a driving licence; (ii) a learner permit is a conditional driving licence and in this case the conditionality is not satisfied; and (iii) consequently, as a necessary condition had not been complied with, the accused was not insured to drive on the relevant day and, therefore, the policy of insurance was rendered ineffective. The judge said that he was minded to convict the accused of driving without insurance and asked: “am I correct in my view that the charge against the accused of driving without insurance should be upheld”.

Held by the High Court that the case stated had to be answered on the basis that the accused cannot be convicted under s. 56(1) of the Road Traffic Act 1961 on the evidence referred to in the case stated, so the answer to the question posed in the case stated is “No”.

The Court held that it would make an order that the accused benefit from an order under s. 5 of the Criminal Justice (Legal Aid Act) 1962.

Case stated.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 26th day of June, 2020

1 On 28th September, 2018 the accused was stopped by Gardaí at Deerpark Estate, Ennistymon, County Clare. At that time, he was the holder of a learner driver permit, but not a driving licence. He was not accompanied by a qualified driver.

2 On 12th November, 2018 a summons was applied for, alleging that in a public place the accused had used a mechanically propelled vehicle without insurance contrary to s. 56(1) and (3) of the Road Traffic Act 1961, as amended by s. 18 of the Road Traffic Act 2006. That summons was first listed on 12th March, 2019 and came on for hearing on 7th April, 2019 before Judge Patrick Durcan in District Court District No. 12, sitting at the District Court in Ennis, County Clare.

3 The accused was apparently separately charged with unlicensed driving although this is not expressly referred to in the case stated. I am told he was convicted of that offence on a plea of guilty.

4 The case stated recites that the accused produced a policy of insurance which on its face covered driving a mechanically propelled vehicle in a public place on the date in question. The circumstances in which that proof of insurance was produced are not gone into in the case stated although I understand that he produced the certificate of insurance to the prosecuting Garda in court. The case stated says that that the investigating Garda gave evidence of contacting the insurer and was advised that in the event of loss to a third-party arising from the driving of the accused “the insurer would compensate the third party but would seek to recover the cost of same from the accused”.

5 On 13th November, 2019 the learned judge signed a case stated pursuant to s. 52(1) of the Courts (Supplemental Provisions) Act 1961 setting out that he formed the view that:

(i). for the relevant policy of insurance to be operative the accused needed to have a driving licence;

(ii). a learner permit is a conditional driving licence and in this case the conditionality is not satisfied; and

(iii). consequently, as a necessary condition had not been complied with, the accused was not insured to drive on the relevant day and, therefore, the policy of insurance was rendered ineffective.

6 The learned judge said that he was minded to convict the accused of driving without insurance and asked: “am I correct in my view that the charge against the accused of driving without insurance should be upheld”. On that question I have now received helpful submissions from Mr. David Staunton B.L. for the DPP and from Mr. Patrick Whyms B.L. for the accused.

The legislation

7 First of all, I record my gratitude to the learned judge for the very clear and syllogistic way the issues are framed and set out in the case stated. Analysis of the problem must begin with s. 56(1) of the 1961 Act, which as enacted provided as follows: “A person (in this subsection referred to as the user) shall not use in a public place a mechanically propelled vehicle unless either a vehicle insurer, a vehicle guarantor or an exempted person would be liable for injury caused by the negligent use of the vehicle by him at that time or there is in force at that time either—(a) an approved policy of insurance whereby the user or some other person who would be liable for injury caused by the negligent use of the vehicle at that time by the user, is insured against all sums without limit (save as is hereinafter otherwise provided) which the user or his personal representative or such other person or his personal representative shall become liable to pay to any person (exclusive of the excepted persons) by way of damages or costs on account of injury to person or property caused by the negligent use of the vehicle at that time by the user, or (b) an approved guarantee … [in similar terms]”

8 Subsection (2) sets out exceptions and limitations that may lawfully be provided for in the policy of insurance and sub-s. (3) provides that a person who contravenes sub-s. (1) shall be guilty of an offence. The penalty under sub-s. (3) was increased to a fine not exceeding €5,000 by s....