DPP v O'Connor

• Jurisdiction: Ireland
• Judgment Date: 17 November 1999
• Docket Number: [S.C. No. 288 of 1998]
• Date: 17 November 1999
• Court: Supreme Court

Director of Public Prosecutions v. O'Connor

In the matter of the Court (Supplemental Provisions) Acts, 1961 to 1991. Director of Public Prosecutions, Respondent

and

Patrick O'Connor

Appellant

[S.C. No. 288 of 1998]

Supreme Court

Road traffic - Insurance - Checks on insurance - Vehicles normally based in another member state - Whether member states permitted to make insurance checks on vehicles normally based in another member state - Council Directive 72/166/E.E.C., art. 2(1) - European Communities (Road Traffic) Compulsory Insurance Regulations, 1995 (S.I. No. 353) - Road Traffic Act, 1961 (No. 24), s. 67.

Article 2(1) of Council Directive 72/166/E.E.C., as amended by Council Directive 72/430/E.E.C., and further amended by second Council Directive 84/5/E.E.C. provides as follows:-

"Member States shall refrain from making checks on insurance against civil liability in respect of vehicles normally based in the territory of another member state. … Member States may, however carry out random checks."

The appellant, who was driving a motor car registered in the United Kingdom, was requested by a member of An Garda Síochána to produce a certificate of insurance or certificate of exemption in relation to the use by him of a mechanically propelled vehicle at a public place. No certificate of insurance or certificate of exemption was produced by the appellant.

It was contended on behalf of the appellant that An Garda Síochána had no power to demand production of a certificate of insurance or certificate of exemption in relation to a vehicle which is deemed to be based in another member state of the European Union. It was argued by the appellant that the directive was applicable in the State, and that its effect was to prohibit the checking of insurance and the demanding of insurance particulars in relation to civil liability where vehicles are deemed to be based in another member state, and that such vehicles were deemed to be based in the territory of the state of which the vehicle bears the registration plate. A case was then stated by the District Judge to the High Court for its opinion.

The High Court (Morris P.) decided,inter alia, that An Garda Síochána was entitled to demand from the accused the production of a certificate of insurance provided the court was satisfied that this was a random check. The decision was appealed to the Supreme Court.

Held by the Supreme Court (Hamilton C.J., Denham, Barrington and Keane JJ.), in dismissing the appeal, 1, that art. 2 of Directive 72/166/E.E.C. was aimed primarily at prohibiting border controls.

2. That, while systematic checks on foreign registered cars were to be avoided, random checks might be permitted, provided the checks were exercised in a non-discriminatory fashion as between foreign and domestically registered cars.

3. That there was no provision in the directive to prevent the gardaí from treating the owner of a foreign registered car in the same manner as they would an Irish national.

4. That, so long as the trial judge was satisfied that the check was random in the course of a routine investigation, he would be entitled to hold that the owner was obliged to comply with an officer's demand and failure to do so amounted to an offence.

There are no cases mentioned in this report.

Appeal from the High Court.

The facts have been summarised in the headnote and are fully set out in the judgment of Barrington J., infra.

The High Court (Morris P.), on the 22nd July, 1998, answered a case stated by the District Court, in the following terms that An Garda Síochána was entitled to demand the production of a certificate of insurance for a motor vehicle which bore a registration plate of an had been registered in the United Kingdom provided the District Judge was satisfied that it was a random check.

By notice of appeal dated the 14th October, 1998, the appellant appealed this order to the Supreme Court.

The appeal was heard by the Supreme Court (Hamilton C.J., O'Flaherty, Denham, Barrington and Keane JJ.) on the 28th January, 1999. Following the resignation of O'Flaherty J., the parties agreed to accept the decision of four members of the court.

Cur. adv. vult.

Hamilton C.J. 17th November, 1999

I agree with the judgment about to be delivered by Barrington J.

Denham J.

I agree with the judgment about to be delivered by Barrington J.

Barrington J.

This is an appeal brought by the appellant against the judgment delivered by the High Court (Morris P.) on the 22nd July, 1998, and the order made by him in pursuance thereof.

The matter had come before the learned President pursuant to a case stated by Mary O'Halloran, a Judge of the District Court, pursuant to the provisions of s. 52 of the Courts (Supplemental Provisions) Act, 1961, seeking a determination on a question...