Calls for legal loophole to be closed as another driver avoids six-month driving ban

The Minister for Transport has been urged to speedily introduce amending legislation to stop the continuing use of a legal loophole under which some drivers avoid penalty points that would put them off the road for six months in return for being disqualified for periods as short as one day.

At Naas District Court last Wednesday, Judge Desmond Zaidan granted a 24-hour ancillary disqualification order to a 29-year-old man who had failed to pay a fixed charge notice penalty for allegedly holding a mobile phone while driving.

The judge separately struck out some 80 other prosecutions, including for alleged drink driving and alleged drug driving, due to what he described as “systems failures”.

According to legal sources, “systems failures” appears to relate to the large volume of cases consistently before the court, which serves Naas and a wide catchment area. Judge Zaidan has frequently referred to being under intense pressure to get through the number of cases in his list.

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The Irish Times last month highlighted a loophole in the Road Traffic Acts which has led to one-day ancillary disqualification orders being granted in up to 10 cases.

[ Warning to drivers as annual Christmas Road Safety Campaign set to begin ]

A driver who reaches 12 penalty points must be disqualified from driving for six months, but section 2.8 of the Road Traffic Act 2002 is being used to avoid that.

Section 2.8 provides that, where a person admits or is convicted of a penalty points offence, and an ancillary disqualification order is made in respect of that offence, those points shall not be endorsed on the person’s licence.

The section does not specify a minimum period of disqualification for an ancillary order which is discretionary, not mandatory, leaving it up to individual judges whether to grant one.

Drivers on seven or nine points who come before court after failing to pay the fine in a fixed charge notice, and who admit or are convicted of the offence, face hitting the 12 points for endorsement and six months off the road. If they get an ancillary disqualification order for a short period, the points will not be endorsed.

The application under section 2.8 on Wednesday last was made by solicitor Tim Kennelly, who told Judge Zaidan he wanted a one-day disqualification for his client who would otherwise, on foot of the offence of holding a mobile phone while driving, exceed the penalty points threshold.

[ The Irish Times view on the penalty points controversy: there is an important wider context ]

The case first came to the court in January 2022 and was before the court four times after the man failed to pay the fine in the fixed charge notice.

The judge asked the Garda sergeant court presenter, who presents cases on behalf of the prosecution, whether he had any difficulty with the application.

After the sergeant indicated he did not, the judge made an ancillary order disqualifying the defendant from driving on December 15th, 2023. The defendant was fined €150, to be paid within three months.

On Sunday, Fianna Fáil Justice spokesman Jim O’Callaghan and Sinn Féin justice spokesman Pa Daly both called for amending legislation to close off the section 2.8 loophole.

“The purpose behind our road traffic laws is undermined if people can avoid a penalty point disqualification for six months by seeking a short disqualification order instead of the imposition of penalty points,” Mr O’Callaghan said.

Section 2.8 should be amended so that it does not apply in circumstances where the imposition of penalty points would automatically trigger a disqualification for six months, he said.

[ Explainer: How some drivers approaching 12 penalty points are avoiding disqualification ]

“Obviously, a new consolidated Road Traffic Act is needed, but in the interim the Minister for Transport should bring forward a short amending Bill to close off this loophole.”

Mr Daly agreed the loophole should be closed off. “It would not be correct to say there is widespread use of this loophole,” he said. “Some judges are opposed to the use of it and are not using it.”

Last month, following a meeting of the ministerial Road Safety Committee, Taoiseach Leo Varadkar said he had asked that work begin immediately on consolidating all road traffic legislation into a single Bill, with the general outline of that to be published in 2024. “This would close off legislative loopholes and the all-too-common successful legal challenges in existing legislation,” Mr Varadkar said.

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