viewpoint:%20Prosecutions%20disabled?

03 Dec 2018 / legislation Print

Viewpoint: Prosecutions disabled?

A person cannot commit an offence of fraudulently using a disabled parking permit issued under the Road Traffic Act 1961, as they are not issued under the act itself but regulations thereunder.

‘Operation Enable’ was established to address the problem of the illegal use of disabled parking bays and the fraudulent use of disabled persons’ parking permits.

It is a garda initiative, set up in conjunction with Dublin City Council, Dublin Street Parking Services, the Disabled Drivers’ Association of Ireland, and the Irish Wheelchair Association in early 2017.

The initiative has subsequently expanded nationwide and has resulted in numerous prosecutions before the District Courts. The premise of the operation is to ensure that drivers are not ‘getting away with’ parking in disabled bays or using their disabled friends’ or relatives’ permits to avoid paying for parking.

Apparent error

However, there appears to be an error in relation to prosecutions for the alleged fraudulent use of a disabled person’s parking permit.

Prosecutions for fraudulent use of such a permit in the District Courts are initiated summarily, specifically that an accused did “fraudulently use a permit issued under the Road Traffic Act 1961, as amended, to wit a disabled person’s parking permit, contrary to section 115 of the Road Traffic Act 1961, as amended by section 20 of the Road Traffic Act 2006”.  

The wording above is from a summons for the specific charge before a District Court in Dublin.

A person is liable on conviction to a maximum fine of €3,000 or a maximum term of six months’ imprisonment for such an offence.

As amended

The necessary regulations to prosecute an offence of this nature are not included under section 115(4) of the Road Traffic Act 1961, as amended by section 20 of the 2006 act.

Disabled persons’ parking permits are issued under regulations, not under the Road Traffic Act 1961, which are not taken into consideration under section 115 of the Road Traffic Act 1961. Section 115(4) of the 1961 act states: “A person shall not forge or fraudulently alter or use, or fraudulently lend to, or allow to be used by, any other person, any licence, plate, badge or certificate issued under this act or under regulations thereunder.”

This section was subsequently amended by section 20(c) of the Road Traffic Act 2006, by substituting for subsection (4) the following: “A person shall not forge or fraudulently alter or use, or fraudulently lend to, or allow to be used by, any other person, any licence, permit, plate, badge or certificate issued under this act or under regulations made under section 34 of the Taxi Regulation Act 2003.”

The decision of the legislature to remove the phrase ‘or regulations thereunder’ after ‘under this act’ is the crucial oversight – which has undermined prosecutions of this nature.

Applicable regulations

The regulations that deal with the issuing of disabled persons’ parking permits are the Road Traffic (Traffic and Parking) Regulations 1997, as amended by the Road Traffic (Traffic and Parking) (Amendment) Regulations 2011.

These state: “The Road Traffic (Traffic and Parking) Regulations 1997 (SI no 182 of 1997) are amended … by substituting for article 43 the following … 43(1) each body specified in the third schedule may grant to a disabled person a disabled person’s parking permit; (2) in this article, ‘disabled person’ means a person with a permanent condition or disability that severely restricts his or her ability to walk; (3) a permit granted under this article shall be valid for two years from the date of its issue.”

The third schedule referred to at 43(1) above refers to the bodies that may grant a disabled person’s parking permit, those being the Disabled Drivers’ Association, the Irish Wheelchair Association, and an authority of any other state, provided that the pictorial symbol of a person sitting in a wheelchair is shown on the permit.

Prosecutions

The only regulations to be considered under the above-mentioned prosecutions are regulations made under section 34 of the Taxi Regulation Act 2003, which deals with the endorsements of demerits on taxi licences and is quite obviously inapplicable in cases relating to the fraudulent use of disabled persons’ parking permits.

The specific regulations in relation to such permits cannot be considered under these prosecutions.

It cannot be suggested in any prosecution that regulations are to be assumed to be considered in the spirit of an act, especially in circumstances where the amendment in these cases clearly removes any consideration for regulations by limiting the scope to only section 34 of the Taxi Regulation Act 2003.

Simple oversight

A person cannot have committed an offence of fraudulently using a disabled person’s parking permit issued under the Road Traffic Act 1961, as they are not issued under the act itself but regulations thereunder.

Relevant regulations

An accused could apply to the court that they have no case to answer, and any charge could, in theory, be dismissed, as it is not possible for the prosecution to proceed in the absence of the relevant regulations, as it could not be considered.

This offence is not one known to law, and the statute it has been brought under has been limited due to an amendment whereby the relevant regulations that would be necessary to be considered for the prosecution are, in fact, not considered.

A simple oversight in the drafting presumably – however, it is one that practitioners should note.

Oral arguments

I am aware of one case already in which the prosecution was withdrawn by the DPP where oral arguments were made regarding this point at a preliminary stage and, subsequently, written submissions were requested from both the State and counsel for the accused.

It will be interesting to see what will happen to those who have already been convicted on foot of a summons and now seek to appeal.

The court may or may not allow extensions of time to appeal the conviction.

Those who plead guilty would presumably have less of a chance of an extension of time being allowed. However, on the other hand, as was held in Attorney General (Lambe) v Fitzgerald ([1973] IR 195), the Supreme Court found that a person who enters a plea of guilty in the District Court can change the plea to one of not guilty on appeal to the Circuit Court.

Ben O'Connor
Ben O'Connor is a barrister practising on the Dublin and Eastern Circuits