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D.P.P. v. O'Connor [1999] IESC 77; [2000] 1 IR 300; [2000] 2 ILRM 137 (17th November, 1999)
THE
SUPREME COURT
288/98
Hamilton,
C.J.
Denham,
,J.
Barrington,
.J.
Keane,
.J.
IN
THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACTS, 1961
Between:
THE
DIRECTOR OF PUBLIC PROSECUTIONS
Complainant/Respondent
and
PATRICK
O’CONNOR
Defendant/Appellant
JUDGMENT
delivered on the 17th day of November, 1999 by Barrington, J. [Hamilton C.J.,
Denham J. and Keane J. concurring]
1. This
is an appeal brought by the above named Appellant against the Judgment
delivered by the President of the High Court (Morris, P.) on the 22nd day of
July, 1998 and the Order made by him in pursuance thereof.
2. 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
________________________________________________
-2-
3. The
complaint in respect of which the case stated arose was that the Respondent
“on
the 3 0/01/9 7, at Ballycormack, Shanagolden, Co. Limerick a public place, in
the court area and District aforesaid, being the user of a mechanically
propelled vehicle, registered number C196 RJ did fail to produce then and
there, on demand, to a member of the Garda Siochána, either a
Certificate of Insurance or a Certificate of Exemption in respect of your use
of that vehicle on that occasion, and did fail within ten days after the date
on which such production was demanded to produce such certificate in person to
a member of the Garda Siochána at a Garda station named by you at the
time when such production was so demanded. Contrary to Section 69 (1) of the
Road Traffic Acts, 1961 and Section 102 of the Road Traffic Act, 1961 as
amended by Section 2 of the Road Traffic (Amendment) Act, 1984”.
4. The
facts as set out in the case stated were inter alia, as follows:-
2.
“At the hearing of the said complaint it was admitted
________________________________________________
-3-
that
a mechanically propelled vehicle (a Ford Transit Van) registration number C196
YRJ was driven by the accused in a public place namely Ballycormack,
Shanagolden, County Limerick on the 30th day of January, 1997.
5. A
demand was made on the 30th day of January, 1997 by Garda Stephen
O‘Carroll for production of Insurance or Certificate of Exemption by
Patrick O‘Connor in relation to the use by him of said vehicle in a
public place. No Certificate of Insurance or Certificate of Exemption was
produced by the accused It was also admitted that the vehicle in question did
not belong to the Garage man and that the Garage man was acting in the course
of his duties when the demand was made
3.
It
was contended for the accused that An Garda Siochána have no power to
demand particulars 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 by virtue of Council Directive 72/166/EEC as amended by 72/430/EEC and as
further amended by the Second Council Directive 84/5/EEC all of which these
________________________________________________
-4-
the
effect of such Directives was such that the checking for Insurance and
demanding for Insurance Particulars in relation to Civil liability at least was
prohibited in relation to vehicles deemed to be based in other member states
and that such vehicles were deemed to be based in the territory of the state of
which the vehicle bears a registration plate.
4.
It
was contended for the Director of Public Prosecutions that Statutory Instrument
Number 178/75 implemented Council Directives 72/166/EEC and 72/430/EEC and that
same said Statutory Instrument amended Section 69 of the Road Traffic Act 1961
by the insertion of Section 69A which appeared to expressly provide for the
checking of Insurance in relation to vehicles from States other than EU states
(designated Territories) and that there appears to be conflict between Section
69 1 and Section 69 Al but that it could never have been intended that members
of An Garda Siochána would be prohibited from making checks in relation
to vehicles driven by Irish residents which would bear a registration plate
from another designated territory or EU Country and that the spirit of the
European Legislation and the amendment to the Road Traffic Act was
________________________________________________
-5-
such
that only checks on visiting motors and tourist were prohibited.
5.
I
reserve my decision on the said complaint pending the determination of this
case stated. The opinion of the High Court is respectfully sought on the
following question.-
(a)
whether, having regard to the provisions of the Council Directive 72/166 and in
particular Article 2 thereof and commission decision of the 6th February, 1974,
and in particular Article 1 thereof and Council Directive 84/5/EEC, and in
particular Article 4 thereof and having regard to the provisions of European
Communities (Road Traffic) (Compulsory) Insurance Regulations 1975, purportedly
implementing the terms of Council Directive 72/166, the Garda Siochána
was entitled, pursuant to the provisions of Section 69 of the Road Traffic Act,
1961 as amended, to demand from the accused, production of a Certificate of
Insurance in relation to his use of a mechanically propelled vehicle in a
public place, to wit Ballycormack, Shanagolden in the County of Limerick, on
the 30th January, 1997, in the course of
________________________________________________
-6-
his
employment in the Motor Garage business, bearing a registration plate of and
registered in the United Kingdom, numbers and letters C196 YRJ”.
6. By
his order dated the 22nd July, 1998 the learned President ordered that the
question posed by the District Judge be answered as follows:-
“That
the Garda Siochána was entitled to make the demand referred to at
paragraph 5(a) providing that the named District Judge is satisfied that this
was a random check”.
7. He
further ordered that
“the
parties hereto be at liberty to appeal to the Supreme Court from this
determination”.
8. The
Appellant herein has appealed to this Court in pursuance of the liberty granted
by the said Order against the Judgment and Order of the learned President.
9. In
the question posed by the Judge of the District Court reference is made to:-
________________________________________________
-7-
(1)
The
provisions of Council Directive 72/1 66 and in particular Article 2 thereof,
(2)
Commission
Decision of the 6th February, 1974, and in particular Article 1 thereof,
(3)
Council
Directive 84/5/EEC and in particular Article 4 thereof.
(4)
The
European Communities (Road Traffic) (Compulsory) Insurance Regulations 1975
(S.I. 178 of 1975) purportedly implementing Council Directive 72/166.
10. Article
2 of Council Directive 72/166 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.
Likewise, Members States shall refrain from making such insurance checks on
vehicles normally based in the territory of a third country entering their
territory from the territory of another Member State. Member States may,
however carry out random checks”
11. Article
1 of the Commission decision of the 6th February, 1974 provides that from the
15th day of May, 1974 each Member State shall refrain from
________________________________________________
-8-
making
checks on insurance against civil liability in respect of vehicles which are
normally based in the European Territory of another Member State and which are
the subject of the Agreement of National Insurers Bureaux of the 12th December,
1973.
12. Article
4 of the Second Council Directive of the 30th December 1983 provides as follows:-
“the
first indent of Article 1 (4) of Directive 72/166/EEC shall be replaced by the
following:
“the
Territory of the State of which the vehicle bears a registration plate, or.
The
basic Police power to demand proof of insurance cover in this State is
contained in
Section 69 (1) (a) of the
Road Traffic Act, 1961 which reads as
follows:-
69.-(1)
(a) “Where a member of the Garda Siochána has reasonable grounds
for believing that a mechanically propelled vehicle has been used in a public
place on a particular occasion (including a case in which the member has
himself observed the use) and that the actual user of the vehicle on that
occasion was a particular person, the member may, at any time not later than
one month
________________________________________________
-9-
after
the occasion, demand of the person the production of either a certificate of
insurance or a certificate of guarantee or a certificate of exemption in
respect of the use of the vehicle by the person on the occasion and, f the
person refuses or fails to produce any such certificate then and there he
shall, unless within ten days after the day on which the production was
demanded he produces such certificate in person to a member of the Garda
Siochána at a Garda Siochána station named by the person at the
time at which the production was demanded, be guilty of an offence
This
Section must be distinguished from Section 69A (i) of the
Road Traffic Act,
1961 which was inserted in the
Road Traffic Act, 1961 by Article 6 of S.I. No.
178 of 1975 and which, so far as relevant to this discussion, provides as
follows:-
(1)
“In this section - ‘vehicle’ means any mechanically propelled
vehicle intended for travel on land and any trailer whether or not coupled:
“authorised
officials means an officer of the Customs and Excise or a member of the Garda
Siochána”.
________________________________________________
-10-
(2)
An authorised official may demand of a person having charge of a vehicle being
a vehicle which is not normally based in the State or in any of the designated
territories, when entering the State with the vehicle or having so entered, to
produce evidence that the use of the vehicle in the State and in the designated
territories is covered by insurance in accordance with the requirements of the
laws of the State and of the designated territories relating to compulsory
insurance against civil liability in respect of the use of vehicles and ~f on
such demand having been made such evidence is not produced the vehicle shall
not be used in the State
13. Article
3(b) of the same statutory instrument inserts Section
5
6(7)
into the Act of 1961, which subsection defines the
“designated territories as meaning “the European territories of the
Member States, other than Ireland, of the European economic community ‘
and of certain other countries therein named.
14. The
powers to demand evidence of insurance cover contained in Section 69A have
therefore no direct relevance to the present case as they relate to the
stopping and inspection of cars which enter the State from outside the European
Union, or certain other States, such as Norway which have special
________________________________________________
-11-
arrangements
with it. The present case concerns a vehicle registered in a Member State.
DISCUSSION:
15. As
the learned President pointed out in his Judgment, to understand the problem in
the present case it is necessary to bear in mind the scheme of the Common
Market as it relates to the free movement of persons and of vehicles. The
purpose of the EEC Treaties was to replace the national markets of the various
Member States with a Common Market embracing all of the States so that persons
and vehicles would be as free to move throughout the territory of the European
Community as previously they had been free to move within the territories of
their respective States. To achieve this it was necessary to provide agreed
minimum standards of insurance cover for motorists throughout the European
Community so that there would be no justification for routinely stopping
motorists crossing national borders to ensure that they had a
“green
card”
or
other evidence of acceptable insurance cover. Under the new regime a car was to
be assumed to be insured unless there was some reason for suspecting the
contrary. Blanket checks at borders were therefore to be eliminated.
________________________________________________
-12-
16. But
there would be little point in eliminating blanket checks at borders if foreign
registered cars were to be routinely stopped by the Police within the
territories of the individual Member States.
17. The
policy of the Community is crystal clear from the preamble to the principal
directive of the 24th April, 1972 (72/166/EEC). The relevant portion of the
preamble reads as follows:-
“Having
regard to the Treaty establishing the European Economic Community, and in
particular Article 110 thereof;
Having
regard to the proposal from the Commission;
Having
regard to the Opinion of the European Parliament;
Having
regard to the Opinion of the Economic and Social Committee;
Whereas
the objective of the Treaty is to create a common market which is basically
similar to a domestic market, and whereas one of the essential conditions for
achieving this is to bring about the free movement of goods and persons;
Whereas
the only purpose of frontier controls of compulsory insurance cover against
civil liability in respect of the use of motor
________________________________________________
-13-
vehicles
is to safeguard the interests of persons who may be the victims of accidents
caused by such vehicles; whereas the existence of such frontier controls
results from disparities between national requirements in this field;
Whereas
those disparities are such as may impede the free movement of motor vehicles
and persons within the Community; whereas, consequently, they have a direct
effect on the establishment and functioning of the common market;
Whereas
the Commission Recommendation of 2l June 1968 on control by customs of
travellers crossing intra-Community frontiers calls upon Member States to carry
out controls on travellers and their motor vehicles only under exceptional
circumstances and to remove the physical barriers at customs posts;
Whereas
it is desirable that the inhabitants of the Member States should become more
fully aware of the reality of the common market and that to this end measures
should be taken further to liberalise the rules regarding the movement of
persons and motor vehicles travelling between Member States; whereas the need
for such
________________________________________________
-14-
measures
has been repeatedly emphasised by members of the European Parliament;
Whereas
such relaxation of the rules relating to the movement of travellers constitutes
another step towards the mutual opening of their markets by Member States and
the creation of conditions similar to those of a domestic market;
Whereas
the abolition of checks on green cards for vehicles normally based in a Member
State entering the territory of another Member State can be effected by means
of an agreement between the six national insurers bureaux, whereby each
national bureau would guarantee compensation in accordance with the provisions
of national law in respect of any loss or injury giving entitlement to
compensation caused in its territory by one of those vehicles, whether or not
insured.
Whereas
such a guarantee agreement presupposes that all Community motor vehicles
travelling in Community territory are covered by insurance; whereas the
national law of each Member State should, therefore, provide for the compulsory
insurance of
________________________________________________
-15-
vehicles
against civil liability, the insurance to be valid throughout Community
territory; whereas such national law may nevertheless provide for exemptions
for certain persons and for certain types of vehicles ,“
18. It
is in this context that Article 2 of the directive is to be read. It is aimed
primarily against border controls. But it is also clear that all blanket or
systematic checks on foreign registered cars are to be avoided. Random checks
may be permitted. But if checks are to be
“random’s
they should not be aimed against foreign registered cars only”.
19. But
while the purpose of the directive was to place foreign registered cars, and
their drivers, so far as practicable, in the same position as domestically
registered cars and their drivers, it was not the intention to confer upon
foreign registered cars and their drivers any form of privileged position. To
confer a privileged position on foreign registered cars and their drivers would
be contrary to the whole concept of the Common Market.
20. Nor
was it intended to trench upon the normal Police power of the individual Member
States provided this power was exercised in a non-discriminatory fashion as
between foreign registered and domestically
________________________________________________
-16-
registered
motor cars. In Ireland, for instance, if a motor car is involved in an accident
or a mishap it is customary for the investigating Police Officer to ask the
driver to produce evidence that he is licensed and that the car is taxed and
insured. There is nothing in the directive to prevent a Police Officer from
making the same demands of the driver of a foreign registered car in the same
or similar circumstances. If therefore, in the present case, the learned
District Justice were to be satisfied that the Police Officer demanded evidence
of insurance in the course of a random check or in the course of a routine
investigation of an accident or mishap in relation to the motor car in question
or in connection with a routine investigation of a suspected offence relating
to the user of the motor car in question she would be entitled to hold that the
Appellant was obliged to comply with the Officer’s demand and that his
failure to do so amounted to an offence.
21. I
would dismiss the Appeal.
22. I
wish to add that I consider the point of law involved in the present case to be
clear and not to require a reference to the European Court of Justice for a
preliminary Ruling.
© 1999 Irish Supreme Court
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