[Article] Speed traps full of loopholes

Speed traps full of loopholes
14/11/04 00:00
By Barry O'Kelly

Gardai fondly remember the good old days of the 'ordinary decent speedster', a menace on the roads who grimly accepted his fate when caught.

Those were simpler times, when the speeding motorist found himself caught up in a paper trail from which there appeared to be no escape.

Computer glitches had not been invented, as the records system was mostly manual. It was a system largely free of loopholes, with a dedicated garda delivering the summons by hand to the errant driver, who was generally nailed in court.

This golden era of the 'law-abiding' speeding motorist ended shortly after 2002BC (before computers), when penalty points and fixed speed cameras were introduced, with what now appears to be limited forethought.

After an initial honeymoon period of four months, when road deaths plummeted, the carnage resumed with a vengeance.

The motoring public is split on the issue of compliance with the new traffic enforcement system. About 46 per cent of drivers caught for penalty point offences have managed to wriggle out of paying fines, according to the latest available figures.

"One would be a desperate fool to pay up front," said John Perry, Fine Gael TD and former chairman of the Dáil Public Accounts Committee (PAC).

Nearly 40,000 drivers failed to pay when issued with penalty point notices during the 14 months to December 31 last year. Only one in five of those drivers was subsequently summonsed to appear in court.

Gardai blamed two blunders in particular - a bug in the penalty points computer and a glitch in the camera system, which produced blurred pictures of car registration plates. These problems are being ironed out.

But the system is beset by more fundamental problems, which appear insoluble without a change in the law.

The most serious difficulty is the reluctance of the courts to accept evidence of summonses being posted to drivers.

Assistant Commissioner Pat Crummey spelled out the difficulty to the PAC two weeks ago. "The first issue arises from the difficulty in having the notices accepted in court," he said.

"A decision was made not to issue summonses until this issue was clarified. Discussions were held with the Director of Public Prosecutions, who advised that if we were not in a position to prove service of the notice, it would be as well not to issue summonses or take cases to court.

"Recently, an operational decision has been taken to enter summonses, although the issue of service of the notice has not been fully resolved."

It is believed that the legality of the summonses is in question because of a successful challenge by five motorists in the Dublin District Court.

The motorists' lawyer argued that there was a legal onus on the gardai to prove that the summons had been served.

The delivery of a summons by mail, rather than by the traditional means of a personal visit to the driver's home, was unacceptable in law, he said.

Another weakness in the legislation underpinning the penalty points system is the right of car owners to nominate another driver.

In the period to last December 31, more than 23,000 car owners caught for penalty points claimed they were not using the car at the time, and they gave the name of another driver.

The statistical probability of this - one in five drivers lending their car to another driver at any one time - is remote.

Such is the shambles of the penalty points computer network, that it was impossible to establish whether the subsequent payment of a fine was made by the car owner or the nominated driver.

The fine might not be paid at all if the nominated driver were resident abroad.

"If a driver who fears penalty points says, truly or falsely, that it was not himself in the car, but his aunt in Newry, friend home on holiday from New York or cousin from Birmingham, the guards do not proceed any further," Perry said.

Department of Justice Secretary General Seán Aylward conceded this was a problem, but one experienced in all countries with such a system.

"Human nature being what it is, people invoke that type of defence. In many cases, it is true," he said.

Aylward said the legislation had an impact in two areas.

The first related to people based or living in the North, and the other to people based outside Ireland.

"It is being pursued in the context of the British-Irish Council, which is responsible for east-west cooperation between the two governments," he said. "The European Commission is also preparing a paper on this, to see how we can address the enforcement issue right across Europe."

But anyone with a friend or relative in the US, and an inclination to do so, will blithely continue to brazen it out with the traffic law enforcers.

"No country has solved the problem where the offender or nominated driver turns out to be on another continent," said Aylward. "We have carried the risk and taken hits for some of the mistakes, but we can point to the outcome - that we have saved lives by this activity."

A further weakness in the legislation is the advantage it confers on the drivers of company cars. Official figures released to the PAC, which went unreported, reveal that the gardai are reluctant to pursue speeding cases against these drivers.

This is because the penalty points law only covers the car user. When a camera picks up the speeding driver of a company car, it actually only captures a registration plate registered to a company - an abstract concept not provided for in the legislation.

"The company does not incur penalty points, because the law relates to the user," said chief superintendent John Farrelly, who inherited the penalty points nightmare when he took over the traffic bureau last September. "There is no legislation under which penalty points can be imposed on the company concerned.

"However, there is legislation in place to deal with the failure to nominate a driver.

"We pursue companies in this way."

Asked at the PAC how many companies had been pursued, he said: "There have been 11 instances this year where we have initiated proceedings.

There have been one or two convictions. Normally it is the company secretary who is brought to court."

Up to last December 31, about 235 companies had failed to nominate a driver.

John Curran, a Fianna Fáil TD, noted that only one in 20 companies had been pursued through the courts. The temptation for many to defy the law might be irresistible.

Aylward said the law might have to be amended.

"If we find, on advice from the gardai, that the system is simply proving too unwieldy, we have agreed with our colleagues in the Department of Transport that they should be willing, in the context of forthcoming road traffic legislation - either legislative vehicles already under way or subsequent ones - to tidy up the law.

"This would make it more convenient administratively for the gardai to go after the company that is failing to identify its driver.

"At the moment, it is slightly unwieldy, since the garda has to identify the court area, and, if resourced, the investigation must get after the company, its secretary and so on. However, it will not be allowed to emerge as a significant loophole."

Julie O'Neill, a senior civil servant in the Department of Transport, said: "It is a great incentive to nominate people, if owners know they will attract the points if they do not do so. It is clearly a somewhat different issue where companies are concerned.

"We want to facilitate the gardai in any way possible to pursue the company, and we are exploring the idea of going beyond simply making the company responsible for nominating the individual driving the car.

"A named person in the company, such as the company secretary, might be assigned that responsibility specifically, making it easier for the gardai to pursue the matter to prosecution. Several other issues arise from time to time regarding the legislation.

"When they arise, we move speedily. They are not all easy to resolve, given the nature of individuals' constitutional rights here. There will always be a new angle or idea emerging."