Category: Criminal Law

Unanswered questions in the Garda FCPS report

Unanswered questions in the Garda FCPS report

Over the past 24 hours the media has focussed on one of the two reports published by An Garda Síochána yesterday. The report into mandatory alcohol testing checkpoints is important and the discrepancy in testing remarkable, but no-one was wrongly prosecuted or convicted as a result of the errors involved. This is exactly what happened due to problems with the Fixed Charge Processing System (FCPS), the subject of the second report. Unfortunately, the report only explains how summonses were wrongly issued, not how so many resulted in convictions before the issue was spotted.

The report details a number of failings which led to the wrongful prosecution and conviction of thousands of citizens. In short: a massive IT system was rolled out with too many people involved in its operation, no training provided to its users and updates applied to it on a piecemeal basis. Some of the reasons for these issues are the type of thing that can happen with any IT system but are remarkable given that the system involved is part of the State’s criminal justice apparatus, with serious consequences for citizens. For example:

  • “This problem should have been foreseen but was not.” (p.35)
  • “Members of An Garda Síochana were not given any formal instruction on the FCPS or the issuing of Fixed Charge Notices (FCN‘s) between 2004 and 2016.” (p.36)
  • “A [Fixed Charge Processing Office] FCPO home page exists [on the Garda Portal] but this does not contain all related and necessary information … There is currently no one place that Garda personnel can go and get comprehensive, clear, concise and up to date direction on using the FCPS.” (p.36)
  • A Manual Summons Report, which was intended to inform prosecuting gardaí that a fixed charge offence would not lead to a summons being issued automatically and would need manual intervention “remains largely unknown by district staff members and there is still much confusion about same.” (p.37)
  • “From the day this system was created there was a lack of functionality between the two core systems i.e. FCPS and Pulse.” (p57)

This report comes on the back of, and refers to, a report by the Garda Síochána Inspectorate on the FCPS in 2014 which said that fixes to various issues in the system had resulted in a “technically deficient, managerially uncoordinated, ineffecient and excessively resourced support unit” (p.9 of that report).

The new report identified a number of issues that required a solution but the one that remains unexplained and is difficult to comprehend, is where convictions were imposed for driving without an NCT certificate where the accused had already paid a FCN.

The crucial point here is that one cannot be convicted of Fixed Charge Offence if a FCN has not issued in advance. If no FCN was issued or received by the accused, or if it was issued and was paid, the accused has a full defence to the charge. So why did we not encounter thousands of people in court between 2014 and 2016 giving evidence that they had paid their FCNs?

Gardaí first became that there was a defect in the FCPS in respect of the NCT offence on 6 February 2016 and set about examining and rectifying the issue. Separately, on 26 April 2016 a Garda Sergeant contacted the Garda Information Services Centre to report that a defendant in a particular District Court had appeared on foot of a summons for driving without an NCT certificate when it transpired that the defendant had (a) received a FCN in advance and (b) had paid the fine. The summons should have never issued but, in the event, the defendant had a full defence and the charge was struck out. What beggars belief is that this was the first time the issue arose in a court.

The report gives us only one aggregate figure for convictions arising out of the various issues identified: 14,700 (p.33). It is not clear whether this 14,700 relates only to NCT convictions or to the full range of FCOs. The issues outlined in page 33 are different from those in page 56. How many of the 14,700 convictions referred to were cases where the FCN had been paid, or is there a different statistic entirely for that issue? The report is not just unclear, but confused.

Bear in mind that a court conviction for driving without an NCT carries 5 penalty points, and 12 penalty points leads to disqualification (7 for learners and novices). A second conviction for driving without an NCT carries an automatic 2 year disqualification. So, in almost 15,000 convictions, were there none where the accused was at risk of disqualification or was in fact disqualified? How was it that no-one came to court before 26 April 2016 to say that they had already paid a FCN and should not have been prosecuted? How was there not at least one driver who learned of a conviction and then appealed it because they had already paid the fine?

Are we to accept that thousands of drivers received notification that they had been convicted of an offence and received penalty points and, possibly, a disqualification from driving even though they had already paid a FCN, and they did nothing?

The failure to address this aspect of the examination means that the following further detail is needed:

  • Of the 14,700 cases identified, how many were prosecutions where the FCN had been paid?
  • Of those cases, how were the summonses served and have the declarations of service been examined?
  • How many of those convictions were recorded in the absence of the defendant?
  • How many of those convictions resulted in the disqualification from driving of the defendant?

A note in the report, after a review of previous reports into the FCPS, states:

The recommendation that the process becomes totally automated using technology to ensure more consistent results is a common theme throughout all these reports. (p.43)

That is well and good, but some of the problems that have arisen are the result of automation and technology. They can be fixed, but a greater degree of care is required in designing and implementing these systems. If Amazon’s order fulfillment system gets a code wrong you might “The Pelican Brief” on DVD instead of in paperback, if the Gardaí’s system gets a code wrong you might get a criminal record.

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Perils of learner permits: make sure you observe the conditions

RSATraditionally people have referred to green driving licences as “provisional licences” but in 2006 they were rebranded as “learner permits”. The change in name is, no doubt, intended to suggest a key difference between a driving licence and a learner permit: the latter “has effect in accordance with its terms and conditions“. This simple statement is important and has continually raised a question: if the terms and conditions of a learner permit are not observed, is the driver unlicensed?

There are a number of specific offences which a learner driver can commit, such as not displaying L plates or driving unaccompanied. These offences are frequently committed and drivers are often prosecuted for them. However, there is also an offence which anyone can commit of driving without a driving licence. Just as people have traditionally referred to the “provisional licence”, it has traditionally been thought that if one holds a learner permit one is licensed, whether or not one observes the terms and conditions applicable to it.

Gardaí and solicitors have argued this point repeatedly but it has recently been clarified in the High Court: if you hold a learner permit and drive in breach of its terms and conditions it is temporarily ineffective and you are guilty of driving without a driving licence.

The penalties for driving without a licence are not overly severe, in that you do not face automatic disqualification from driving for example, but a follow-on issue arises: if your policy of insurance requires that you are a licensed driver, and you drive in breach of the terms and conditions attaching to a learner permit, are you still insured? A conviction for driving without insurance is more serious than one for driving without a licence and carries a disqualification.

This was the second element to the case and, fortunately for learner drivers, the outcome was that the fact that a learner permit might be temporarily ineffective does not necessarily invalidate the insurance policy. The wording of the policy, as ever, is crucial. In this case, the policy certificate provided that the defendant’s driving was covered “provided that [he] holds a licence to drive such a vehicle or, having held such a licence, is not disqualified from holding such a licence.” The terms and conditions apply to the learner permit, not the driver, and so he held a licence entitling him to drive the vehicle. The insurance “was not made conditional in its terms on the accused complying with the terms of a learner permit licence.”

This settles a question which has been arising quite frequently in District Courts over the past few years. It is also a reminder that drivers should familiarise themselves both with the terms and conditions of a learner permit and an insurance certificate before driving.

Penalties for text driving

The new law on “text driving” that came into effect in May is unfortunately confusing. It’s a law that is probably intended to set a tone rather than result in significant prosecutions, but road traffic offences do tend to generate a lot of challenges.

I wrote to the Minister for Transport about the regulations and the new one (Paschal Donohue TD) wrote back.

You are quite right about penalties under the regulations. The Road Traffic Acts 1961-2014 contains in section 102 of the 1961 Act, as amended, a ‘general penalty’, which applies to all road traffic offences for which a specific penalty is not set out in the legislation. We had erroneously referred to the general penalty initially, in reference to the texting regulations. However, as you correctly pointed out, section 3(8) of the 2006 Act provides a penalty of a fine on summary conviction not exceeding €2,000. The Department has since clarified this to the media.

Initial media reports, relying on a note from the Department of Transport, said that the penalties included a jail term of up to 12 months. The clarification is welcome, but he did not address the drafting error in the regulations, which I mentioned in April:

The 2014 Regulations do not apply to “a person to whom section 3(1)” of the 2006 Act applies. Section 3(1) provides for the offence of driving while holding a mobile phone. Section 3(2) exempts Gardaí and emergency services personnel on duty from the prohibition, so I assume the 2014 Regulations are in error and intended to refer to section 3(2).

Hanging on the telephone – has anyone got it right on the new ban on text driving?

[Updated 1/5/14] The ban on texting while driving comes into effect tomorrow (1 May 2014). There has been some confusion about what exactly it prohibits but the best advice, from a practical and legal point of view, is simple: don’t use a mobile phone while driving.

Texting While Driving

Holding a mobile phone while driving was prohibited by the Road Traffic Act 2006. The Act allowed the Minister for Transport to introduce regulations restricting or prohibiting the use in vehicles of mobile phones, in-vehicle communication devices, information equipment or entertainment equipment. Minister Leo Varadkar has now done so in respect of what can loosely be called “texting”.

The 2014 Regulations prohibit sending or reading text messages while driving. There appears to be much confusion about this new law. It bans reading and sending texts while driving and clarifies that:

  • a “text message” includes an SMS, MMS or email;
  • “read” includes access or open, but not by voice-activation;
  • “send” includes compose and type “but does not include anything done without touching the mobile phone”.

There is a peculiarity in the difference in language between “read” and “send”. The former uses the phrase “voice-activation” and the latter “without touching the mobile phone”. The 2006 Act (the parent legislation of the Regulations), however, uses the phrase “hands-free device” which is one “designed so that when used in conjunction with a mobile phone there is no need for the user to hold the phone by hand”. The 2014 Regulations should be consistent with section 3 of the 2006 Act and it would have been better to use the phrase “hands-free device”.

(As an aside: the 2006 Act defines “hold” as meaning “holding the phone by hand or supporting or cradling it with another part of the body”, so the various contortions drivers sometimes resort to are pointless.)

The peculiarity in the language of the 2014 Regulations appears to me not to account for how phones are used. For example, you could read a message by voice activation by requesting Siri to read a message. However, to activate Siri you must press a button either on an iPhone or a built-in Bluetooth system. In the case of the former, therefore, the user must touch the mobile phone. Do the 2014 Regulations allow this for reading a message but not for sending one? Voice activation systems generally require at least one button to be pushed before being used. It does not necessarily mean that this will be a fruitful source of technical challenges, but it is inconsistent.

You might be inclined to think that the repeated use of the phrase “mobile phone” limits the law, but the 2006 Act defines a mobile phone as “a portable communication device, other than a two-way radio, with which a person is capable of making or receiving a call or performing an interactive communication function”. So, the legislation appears to cover a tablet with a sim card, for example.

The 2006 Act provides two defences: using the phone to call emergency services or acting in response to a genuine emergency.

[Updated] Media reports about the law are confusing. This morning (1/5/14) I heard various radio reports that the law prohibits “accessing information using a phone” (it’s not that wide) and sending a text message, even using a handsfree kit (it doesn’t appear to). The confusion is compounded by this explanatory note from the Department of Transport (brought to my attention by Steve White in a comment below). It says:

These regulations apply to mobile phones which are not being held, i.e. to hands-free devices.

This is not quite correct – the Regulations apply to any communications device which fits the definition of a “mobile phone” in the 2006 Act. The reference to hands-free devices is significantly confusing – the Regulations appear to allow the use of handsfree devices, but this note says the Regulations apply to them. What I assume the Department means is that the Regulations apply to the use of mobile phones when not being held. The note goes on to compound the confusion:

Contrary to some misleading media reports, they do not make it an offence to speak via a hands-free device. Nor do they make it an offence to touch a button on a hand-free device in order to answer a phone call.

The penalties involved are a source of confusion, to me at least. Reports by the Irish Times and RTÉ refer to fines of €1,000 for a first offence and €2,000 for the second as well as a possible jail term of up to 12 months. I don’t know where these penalties come from as they are not contained in the 2014 Regulations and section 3 of the 2006 Act does not provide for them. This appears to come from the Departmental note linked to earlier, which refers to these penalties on the basis that the Regulations come under the “general penalty” in section 102 of the Road Traffic Act 1961. Section 102 applies to an offence in the Road Traffic Acts for which “no penalty is provided for the offence”. However, the 2006 Act says that the penalty for holding a phone or other offences made by regulation is a Class C fine (maximum €2,500). Therefore, section 3 provides for a penalty and I do not see how the general penalty in section 102 of the 1961 Act arises.

Holding a mobile phone is a penalty points offence which now results in 3 penalty points on payment of a fine or 5 on conviction in court. (As with all penalty point offences, the judge has no discretion and they automatically follow a conviction.) Texting while driving is not a penalty points offence.

There has been much hand-wringing and concern about whether or not the 2014 Regulations prohibit the use of Google Maps or Hailo, for example. They don’t, but this does not mean that drivers should feel free to use non-texting functions of their phones while driving – holding a mobile phone (which could include a tablet) while driving remains prohibited, whatever the use it is being put to. Moreover, offences of dangerous and careless driving and driving without due care and attention could cover a wide range of bad driving, and could include, for example, driving while zooming in and out of maps on your phone or sending stickers on WhatsApp.

PS: The 2014 Regulations do not apply to “a person to whom section 3(1)” of the 2006 Act applies. Section 3(1) provides for the offence of driving while holding a mobile phone. Section 3(2) exempts Gardaí and emergency services personnel on duty from the prohibition, so I assume the 2014 Regulations are in error and intended to refer to section 3(2).

Road tax implications of horses in caravans

A caravan, to most of us, brings to mind cramped “holiday” accommodation in wet, seaside fields.

Motor caravans (including camper vans) are large vehicles, but benefit from reduced rates of road tax and reduced compliance obligations. They are used for leisure purposes (ie. tourism) which the State obviously has an interest in encouraging.

Pushing it.
Pushing it.

However, a “motor caravan”, as defined in Irish law, can be a much larger vehicle than the traditional caravan or camper van. For example, a commercial vehicle like a truck can be converted into a motor caravan and might have a large storage area which could be used to contain bicycles, or even animals. Once the vehicle meets the requirements of the Revenue Commissioners and is used for private purposes it can benefit from a special €95 rate of road tax. If its weight does not exceed 7.5 tonnes it does not require a tachograph machine.

Concessionary rate of road tax

The issue of road tax sometimes arises when the owner of a large motor caravan is accused of having paid the incorrect rate of tax. A vehicle must be taxed at the highest rate applicable to its use and, for example, commercial vehicles are taxed according to weight.

The definition of a “motor caravan”, for the purposes of road tax, is:

a vehicle which is shown to the satisfaction of the Commissioners to be designed, constructed or adapted to provide temporary living accommodation which has an interior height of not less than 1.8 metres when measured in such manner as may be approved by the Commissioners and, in respect of which vehicle, such design, construction or adaptation incorporates the following permanently fitted equipment—

(a) a sink unit,

(b) cooking equipment of not less than a hob with 2 rings or such other cooking equipment as may be prescribed, and

(c) any other equipment or fittings as may be prescribed

A special annual rate of tax for motor caravans has existed in Ireland since 1998, currently €95. By contrast, rates of road tax for commercial goods vehicles can reach almost €5,000 annually.

The fairness of the special rate for motor caravans was raised in the Dáil in 2012 by Sandra McLellan TD (SF; Cork East), who asked:

whether it is equitable that a large motor caravan only pays €95 road tax while it costs €307 for an 1108cc Fiat Panda

Phil Hogan TD (FG; Carlow-Kilkenny), Minister for the Environment, Community and Local Government explained the background to the rate.

I understand that the rationale behind the introduction of the concessionary rate was that, while motor caravans are generally less in use than many other categories of vehicle, rates of motor tax were relatively high … I understand it was also considered that a concessionary annual rate of tax for motor caravans would encourage tourism and tourist related activities, not least by facilitating more out-of-season use of motor caravans, where previously owners may have taxed and used the vehicle for only three months of the year due to cost.

Some motor caravans have attracted attention because they resemble commercial goods vehicles, having started out life as such and having been converted into motor caravans. The owner of such a vehicle might be stopped by An Garda Síochána and told that their €95 rate is insufficient and a higher rate, which could well exceed €1,500, is due.

I have successfully defended a number of such prosecutions. If the registration certificate says the vehicle is a motor caravan and it is being used for private and leisure purposes, the €95 rate applies. Prosecutions have arisen because the vehicles in question, while meeting Revenue requirements, included an open cabin area at the rear which might be used for the carriage of, for example, horses. The legislation does not say that this is permitted but neither does it prohibit it. Once the horses are not being carried for commercial purposes, the higher rates do not apply.

Tachographs

© National Library of Ireland
Simpler times.

Many vehicles require tachograph machines in the interests of road safety. It is often thought that motor caravans are exempt from that requirement, but that is not quite correct.

There are a range of exemptions available and though they have different legislative sources they are listed in the Road Safety Authority tachograph declaration form. The two most relevant to motor caravans relate to weight:

  • where gross vehicle weight does not exceed 3.5 tonnes; or
  • where the vehicle or combination of vehicles does not exceed 7.5 tonnes and is used for the non‐commercial carriage of goods.

Confusion sometimes arises because the law on tachographs is made primarily on a European Union level and implemented into Irish law. The Irish regulations do not specifically mention all the exemptions available but some of those referred to are similar to those not referred to. Which is less than helpful.

For example, regulation 5(1) of the Irish law exempts a range of vehicles from the requirement to have a tachograph fitted. Subsection (d) refers to combinations of vehicles not exceeding 7.5 tonnes, but only when used by a universal service provider or for carrying equipment for use in the course of the driver’s work. This is sometimes understood to be a qualification of the non-commercial 7.5 tonnes exemption referred to but in fact it is a different exemption. Regulation 5(1) does not contain the full list of exemptions: regulation 21(1) goes on to say that the Irish law does not apply to vehicles exempted by article 3 of Regulation 561/2006, which itself contains the non-commercial 7.5 tonnes exemption.

Therefore, for most caravan owners, if your vehicle is under 7.5 tonnes a tachograph machine is not required.

As with road tax, confusion sometimes arises because converted commercial vehicles might still contain the tachograph machine that was used in the vehicle’s former life. It might not be functioning any more, or the driver might re-use an old tachograph card when driving, each of which could ordinarily constitute offences. However, if a tachograph machine is not required in the vehicle to begin with it does not matter that the machine is not functioning or is not being used properly.

Beware: pyramid schemes are back in fashion

Pyramids
Sometimes spotted outside Egypt

There’s an adage that, unfortunately, is almost always accurate: if something seems too good to be true, it is.

Pyramid schemes have a tendency of springing up during times of economic difficulty as they traditionally offer impressive rates of return. That is just the first hallmark of the pyramid scheme, however, some others being:

  • affordable rates of initial investment;
  • an opportunity to invest in an industry which is known to be profitable but which you know little or nothing about;
  • a complicated investment structure;
  • impressive sales materials, including presentations in reputable hotels;
  • word-of-mouth recruitment of investors (this is the crucial element);
  • difficulty in withdrawing money from the scheme.

A recent twist on the operation of these schemes is that, in addition to impressive sales materials, members can be provided with online accounts showing their balance and profits to date. Just like a real investment.

Before getting into the detail of what the law on pyramid schemes is, I should of course point out that they are criminal enterprises: it is a criminal offence to establish or promote such a scheme, or to induce others to join it.

Pyramid schemes are an international phenomenon. They are known as ponzi schemes in the US, the most famous example in recent years being that of Bernie Madoff. There have been laws on pyramid schemes in Ireland for decades but the most recent law is contained in the Consumer Protection Act 2007, which calls them “pyramid promotional schemes” and defines them as follows:

a scheme by which a person gives consideration in money or money’s worth, or gives a gift in money or money’s worth, for an opportunity to receive compensation derived primarily from the introduction of other persons into the scheme rather than from the supply or consumption of a product

In plainer language: a scheme which primarily pays you for introducing others to the scheme. They are called pyramid schemes because each time a new investor joins (s)he must recruit more, maybe 5 or 10 members, adding layers of investors beneath each existing layer. The more members that join, the greater pressure there is to recruit even more so that the earlier members get their return.

Eventually members begin to demand the return of their investment. The operators of the scheme will usually tell them that “now isn’t a good time”, or “the market isn’t good, wait a while longer and you’ll earn even more”. Finally, someone loses patience and visits a solicitor or the Gardaí. The pyramid usually collapses straight away and, unfortunately, it is unlikely that investors will get their money back.

Under section 65 of the 2007 Act, the relevant offences are of:

  • establishing, operating or promoting a pyramid scheme,
  • knowingly participating, or
  • inducing or attempting to induce another person to participate.

It is interesting that one is guilty of an offence of participating in the scheme only if one knowingly does so. There appears to be no requirement of knowledge of the nature of the scheme in order to commit the other offences (ie. inducing others to join). In addition, section 78 provides that it is not a defence to say that one relied on information provided by third parties or carried out due diligence.

The penalties for pyramid scheme offences are significant: a fine of up to €150,000 or imprisonment up to 5 years (or both). In addition, any agreements with the scheme promoter are void and unenforceable.

Be alert to any investment opportunity which seems to have the characteristics I outlined above. If you have invested in a scheme and are concerned that it might be a pyramid promotional scheme, talk to your solicitor or local Gardaí. If you think one is operating in your area, do likewise or report it to the National Consumer Agency. The collapse of a pyramid scheme means people will lose money but collapsing it sooner rather than later could save some of your neighbours money.

And remember, more than anything else: if it seems too good to be true, it is.

Try using the law before changing it

I have a letter in the Irish Times today which is superficially about food labelling but is really about our approach to legislation in Ireland.

Before changing the law, one should check to see what the law already is. [Existing consumer law contains] wide-ranging provisions which should be more than adequate to combat improper use of food labelling terms, without having to wait for a departmental report to be commissioned, translated into a Bill, debated, passed, signed and enforced.

Professor Dermot Walsh has an article in the same newspaper about criminal investigations and Garda powers of detention. The issue has far more serious implications for society and individuals, but is connected.

IT WAS ONLY a matter of time before the inordinate delay in bringing criminal charges in respect of the financial mismanagement in this country would spawn calls for expanded Garda powers of detention.

It is a familiar refrain in which the political and law-enforcement authorities seek cover under what can appear a superficially attractive option. The reality is that it represents at best a lazy, outdated and blunt approach to criminal investigation, and at worst an oppressive device that sacrifices fundamental values of personal liberty and due process to the voracious appetite of an autocratic State.

Before the last general election there was much discussion of what was wrong with our system of politics in Ireland. The idea of a Constitutional Convention was floated as a forum in which these problems could be discussed and solutions proposed, although it is highly unlikely that the Convention being established by the current Government will have any significant effect.

I would submit that one of the problems with our system of politics is the rush to change the law whenever an issue arises. This is perpetuated through lobbying, with organisations developing policy issues into campaigns for legislative change which, if achieved, are seen as a win. Hot topics lead to calls for someone to do something and a politician steps forward with a new law: someone has done something.

Recent Ministers for Justice went through a phase in the mid to latter part of the last decade of introducing significant criminal laws on an almost annual basis. These were announced as harsh measures to tackle gangland crime and any practical or civil liberties concerns were dismissed. The latest problem in Limerick city would fall from the national media headlines once each law was passed. Someone has done something. But did these laws have a significant effect or did they just enable the political class to surmount the latest PR hurdle? The remarkable passage of the Criminal Justice (Amendment) Act 2009 is a case in point and has all the hallmarks of a pig in a poke.

Professor Walsh concludes that  something more than just amending the law is required:

Instead of proceeding blindly down the familiar road of expanding police powers of detention, the Government might be better advised to step back and consider just how effective or ineffective these measures have been over the past 40 years.

Of course, that requires more work. Work that is usually labour-intensive and expensive. Work that does not necessarily culminate in launches and press conferences. Work that involves actually using and enforcing laws before adding to them. Work that might involve lengthy study, such as that carried out by the Criminal Law Codification Advisory Committee, which is now to be abolished by Minister Shatter.

A new law is a sticking plaster, but a cheap and quick one that gets positive coverage. Someone has done something. Until we require more of our legislators, this might be the best we will get.