McKenna v The Commissioner of an Garda Siochana

• Jurisdiction: Ireland
• Judge: Mr. Justice Charles Meenan
• Judgment Date: 20 July 2023
• Neutral Citation: [2023] IEHC 437
• Court: High Court
• Docket Number: [Record No. 2021/345 JR]

Between

Keith McKenna

Applicant

and

The Commissioner of An Garda Siochana

Respondent

[2023] IEHC 437

[Record No. 2021/345 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Licencing – Conditions – Applicant seeking an order of certiorari quashing the condition attached to the granting to the applicant of a small public service vehicle licence – Whether the condition was irrational and unreasonable

Facts: The High Court, on 26 April 2021, granted the applicant, Mr McKenna, leave to seek the following reliefs by way of judicial review: (i) an order of certiorari quashing the condition attached to the granting to the applicant of a small public service vehicle (SPSV) licence under Part 2 of the Taxi Regulation Act 2013, dated 22 December 2020; (ii) in the alternative, an order of mandamus directing the respondent, the Commissioner of An Garda Síochána, his servants or agents, to grant the applicant an SPSV licence under Part 2 of the 2013 Act without the condition, namely, “for the purpose of Irish Diamond Limousines and Vintage Wedding Car Hire only”; (iii) a declaration that the respondent was not entitled to attach a condition to the granting of the licence that the applicant was licenced to drive a SPSV “for the purpose of Irish Diamond Limousines and Vintage Wedding Car Hire only” under s. 9(12) of the 2013 Act, the regulations thereto or under any other provisions; and (iv) an order extending time to seek the reliefs sought above pursuant to O. 84 r. 21(1) of the Rules of the Superior Courts 1986.

Held by Meenan J that it was appropriate for the applicant to apply to the District Court Judge when he became aware of the condition which the respondent sought to attach to his licence. Meenan J held that the decision of the District Judge that he could not interfere with the condition was correct, but it did not follow from this that the application by the applicant was not reasonable. Thus, Meenan J accepted the submission of the applicant that time did not begin to run until 4 February 2021, the date when the matter last came before the District Judge. If Meenan J was incorrect in finding that the three-month period commenced on 4 February 2021, he was satisfied that the applicant was entitled to an extension of time. Meenan J found that the fact that the applicant was given “liberty to apply” by the District Judge indicated that the matter could be brought back before the District Judge if circumstances arose, and Meenan J believed it was appropriate for the applicant to go through that procedure before initiating the judicial review proceedings. Meenan J found that, looking at the terms of the condition imposed, it was the case that the applicant in the District Court made reference to working for his cousin, who operated a business as “Irish Diamond Limousines and Vintage Wedding Car Hire”. However, Meenan J held that making this a condition of the SPSV licence was a different matter. He noted that “Diamond Limousines and Vintage Wedding Car Hire” was not a legal entity. He held that a licence is for a five-year period and if, in that period, there was a change in name or legal status, the applicant’s licence would no longer be valid and thus his employment would cease, and he may not be in a position to obtain alternative employment. Further, Meenan J held that if there was a change in name or legal status the applicant could possibly style himself as being “Diamond Limousines and Vintage Wedding Car Hire” and this would defeat the whole purpose of the condition being that the applicant operate his SPSV licence under the supervision and/or direction of an appropriate person. Thus, Meenan J believed that the said condition was irrational and unreasonable.

Meenan J proposed making an order of certiorari quashing the condition attached to the granting to the applicant of a SPSV licence under Part 2 of the 2013 Act, dated December 2020, and an order remitting the matter back to the respondent, the Commissioner of An Garda Síochána, for the purpose of granting to the applicant a SPSV licence, pursuant to the provisions of the 2013 Act. Meenan J’s provisional view was that the applicant was entitled to be awarded the costs (including the reserved costs) of the application; costs to be adjudicated in default of agreement.

Relief granted.

JUDGMENT of Mr. Justice Charles Meenan delivered on the 20 ^th of July, 2023

Background

1 . The applicant is presently working as a truck driver and holds all the necessary licences and qualifications including a heavy goods vehicle licence which allows him to drive such vehicles both in this country and internationally. In 2019 the applicant wished to change his employment and applied to the respondent for a small public service vehicle (SPSV) licence within the meaning of Part 2 of the Taxi Regulation Act 2013 (the Act of 2013).

2 . Unfortunately, the applicant has a significant criminal record. The applicant had been imprisoned for seven years in the United Kingdom for a drugs conviction after he was found driving a commercial vehicle with over £1 million worth of cannabis. At the time of his application the applicant was serving a five-year prison sentence (with the final eighteen months suspended) in Limerick Prison. This sentence had commenced on 2 January 2018, having been convicted under s. 15 of the Misuse of Drugs Act 1977 of being found in possession of €98,000 worth of cannabis in Limerick in 2009. His SPSV application was submitted whilst he was on temporary release from Limerick Prison.

3 . By a decision of 15 November 2019, the respondent wrote to the applicant refusing to grant him a SPSV licence for the following reason:

“The applicant is not a suitable applicant to hold an SPSV licence as the applicant still has a two and a half year suspended sentence in relation to the sale/supply of drugs.

The applicant has previous convictions for the international sale and supply of drugs in the United Kingdom and Ireland.”

The applicant appealed this decision to the District Court under s.13(3) of the Act of 2013.

4 . The appeal was initially returnable to 19 December 2019 but due to the then Covid-19 pandemic the matter was not heard until 2 July 2020. On that day, the District Court was told that the applicant had an offer of employment with Irish Diamond Limousines and Vintage Wedding Car Hire should he obtain a SPSV licence. Further, the District Court was advised and it was acknowledged that the applicant had previous convictions for serious drug offences.

5 . Having heard the evidence and submissions of the parties the District Judge reserved his decision. On 16 July 2020, the District Judge allowed the applicant's appeal.

6 . Following the decision of the District Court, the applicant was not issued with a SPSV licence. There then followed correspondence between the applicant's solicitor and the respondent. Ultimately, on 22 December 2020, the respondent issued the SPSV licence but subject to the following condition: that the licence was approved for – “… subject to the conditions attached, namely, “for the purpose of Irish Diamond Limousines and Vintage Wedding Car Hire only.”

7 . The applicant was dissatisfied with this condition and re-entered the matter before the District Court. The first available date on which the District Judge who had heard the appeal was sitting was 4 February 2021.

8 . On 4 February 2021, the District Court was reminded of the history of the case and the respondent claimed that the licencing authority was entitled to place such a condition on the grant of the licence in accordance with s. 9(12) of the Act of 2013. The District Judge indicated that he did not believe he could interfere with the decision of the respondent and so the condition stood.

Application for Judicial Review

9 . On 26 April 2021, this court granted the applicant leave to seek the...