Malicious! It Has to be..

pirelli

A Man produces his insurance cert to his local Garda station within 10 days.
Some months later he gets a summons for failure to produce and for driving without insurance.He contacts the Gardai and explains. The Gardai tell him they know he has insurance and they agree he produced within ten days but they are prosecuting anyway because they think there is a chance that his licence might not cover him for the vehicle . The man explains he has a licence and obviously it covers him and he can get a written letter swearing the licence covers him to drive and he has his licence.

Would you say there is malice in the prosecution and a lack of reasonable and probable cause that the man is guilty of an offence,Would you sue the Gardai.??

cycleoin

I'd say the Gardai aren't lawyers and will chance their arm at every oppurtunity. I'd also say a complaint to the garda ombudsman would be a waste of good breathing air. I'd say if it goes before the court explain to the judge that the gardai are being plonkers.

pirelli

cycleoin wrote: »

I'd say the Gardai aren't lawyers and will chance their arm at every oppurtunity. I'd also say a complaint to the garda ombudsman would be a waste of good breathing air. I'd say if it goes before the court explain to the judge that the gardai are being plonkers.

Cycleoin,

100% agree they are complete nitwits with an army of darkness behind them and big cheesy authocratic arm that operate's on the same scale as a Hollerith punch card sending poor misfortunates into the abyss state run institutionalization

Tom Young

Actually Pirelli it might come as a surprise that the powers vested in a Garda are vested in the individual by the state rather than a state machine. I learned this a few years ago and as a result have revised my opinion on individual members of the force.

Your example is something I suggest is common place. Target are targets and we all live with them.

So I don't disagree but there is a very salient difference between the control structures. That is why it can be very dangerous to challenge a Garda based on their formed intention to charge you, even if it totally wrong at the time.

pirelli

I did I admit encounter an sense of bland monotony when I read you response and while I appreciate people including youerself who have the time to answer these conumdrums, I must state that the esteamed knights of the realm were found guilty of Malicious prosecution in 1990 after an incident in 1983. Garda Dolan and another Garda were found to be guilty. Let this be a reminder that the state doesnt always run the justice system as you suggest,
with contempt and fear.

What do you mean by target's? Meeting conviction rates or something or are you implying that there are target's. check the link, I perceived that the man in the court findings was definetly a target.
P.s one of the witness against the garda has the same name as me.


http://64.233.183.104/search?q=cache:CC4STIuGOHIJ:www.ucc.ie/law/irlii/cases/207-89_e.htm+malicious+prosecution+Shortt+Garda+Lewis+Garda+Dolan&hl=en&ct=clnk&cd=1&gl=ie

p.s
I encountered a Garda Dolan two years later in 1992!!!!

Tom Young

How you encounter my resonses is ultimately your problem

The force lives by targets for arrest and prosecution, thats is a fact.

The justice system is not run with fear and contempt. What happens is that corrupt individuals take the law into their own hands and propagate "fear and contempt". My point ultimately is that the institutional failings are in training and protection for the force and indeed development.

Look at the Shortt case, Morris tribunal there is an endemic failure but the problem is we can't modify the structures too radically without jeopardising the status quo.

I will try and dig out the policing ariticle I mentioned.

pirelli

Tom Young wrote: »

How you encounter my resonses is ultimately your problem

The force lives by targets for arrest and prosecution, thats is a fact.

The justice system is not run with fear and contempt. What happens is that corrupt individuals take the law into their own hands and propagate "fear and contempt". My point ultimately is that the institutional failings are in training and protection for the force and indeed development.

Look at the Shortt case, Morris tribunal there is an endemic failure but the problem is we can't modify the structures too radically without jeopardising the status quo.

I will try and dig out the policing ariticle I mentioned.

I had thought you had expected an encounter might ocour.Most People love the unexpected.

I would be grateful to read the police report.Obviously there should be training etc but the real point is there is no facilities such as expert witness directories readily available nor would you average solicitor have encountered many expert witness's for their client. Those people may be poor,illiterate or skilled worker and highly intelligent.Both will be faced by a serious lack of services even in this day although the situation is improving. These people do not think highly of being put in these desperate situations by Gardai and face jail for crimes the are blatantly innocent of just so an police officer can improve his career.Wether or not the prosecution is malicious is beside the point because the the lack of any real forensic law service in this country or availalbility of expert witness's for a proper defence make it beyond malicious. It gets very technical and vested interests become blurred.

The system should not focus on targets for arrest and prosecution, That would be like our work performance ratings being pre conditioned with 15% of the work force having to be terminated or de-graded. If that is the case then you will have poor people doing twice the workload and witnessing twice the corruption. These are the people that the gardai,state,courts and employers have to build a relationship within the
context of a new and modern society but also realise that they must deliver on truth and reconciliation for these people.I have noticed the law reform introduced deleting past conviction's over 7 years old. This should not be seen as a means to overlook the miscarriages of justice the police have created.Truth and reconciliation is a better way to reduce crime and improve lives.


Unfortunately many of the state institutions have a policy of this is the last straw policy and will not respond judicously nor fairly. The system is capricious and has a nerve of it's own.
It would be a simple matter of increasing appeal courts willingingness to deal with miscarriages of justice and to create a police force built into this premises to actually represent criminals so that they have a police force they can trust. That's what should have happened.Some high level criminals have no criminal records and have exploited our common system and it prejudices.
That is what ruthlessness is and thats what has happened and I do not mean the gardai or state services have criminal moles, I dont believe this is the case but I believe that common criminals are abused by high level criminals and those persons do not have a sufficent relationship with the gardai so that constitutional rights are terribly abused. The Garda Ombudsman which is in essence was what was needed i.e a police force looking to enforce constitutional rights of criminals and police the crimnal can relate to. Unfortunately the garda ombudsman office is in the same building offices and proably the same staff and is really a media hype. In reality there is no relationship and that is why the shooting and related crimes have such a low rate of conviction as the old code remains but modern society is that much more ruthless and populated.Factor in the the lack of truth and reconciliation by the state its courts and the gardai and legal professsion and you have a enflamed situation.

templetonpeck

Absolutely not. I wouldn't say it's malicious at all. Why would a garda want to do it.

Firstly there have been times where people have produced evidence of insurance within 10 days but for some reason the receipt hasn't gone on the system. I wouldn't count this as negligence, just negligence/oversight on the part of the part of the garda who received the evidence of insurance.

Secondly, if you do not have a licence for the type of vehicle you are driving, your insurance will not cover you, therefore you do not have a valid insurance. If the person in question was driving a car and only had a licence for driving a motorbike, his insurance would not be valid.

Duiske

templetonpeck wrote: »

Secondly, if you do not have a licence for the type of vehicle you are driving, your insurance will not cover you, therefore you do not have a valid insurance. If the person in question was driving a car and only had a licence for driving a motorbike, his insurance would not be valid.

Technically, you are correct. Under the terms of insurance, you must have a valid licence for the insured vehicle.
In practice however, if the vehicle was involved in an accident, it is unlikely that the insurance company would invalidate the policy based on the fact that the driver did not have the correct licence for the class of vehicle involved. It is more likely that they would downgrade the policy to third party only.

pirelli wrote:

The Gardai tell him they know he has insurance and they agree he produced within ten days but they are prosecuting anyway because they think there is a chance that his licence might not cover him for the vehicle .

It would be interesting to hear the judges response if the prosecuting Garda used the above terms to explain why he had brought the prosecution in the first place.

pirelli

Duiske_Lad wrote: »

Technically, you are correct. Under the terms of insurance, you must have a valid licence for the insured vehicle.
In practice however, if the vehicle was involved in an accident, it is unlikely that the insurance company would invalidate the policy based on the fact that the driver did not have the correct licence for the class of vehicle involved. It is more likely that they would downgrade the policy to third party only.



It would be interesting to hear the judges response if the prosecuting Garda used the above terms to explain why he had brought the prosecution in the first place.

Well! The garda saw the licence but later must he have reasoned in his own mind that it isnt sufficent.


"The insurance is on a main system on the computer."They have access to our policies.'The driver' checked with my insurance company and 'the driver' is insured on the correct licence and ' the driver' drives with the correct licence. This is not the Garda's gripe (believe it or not) the Garda actually thinks that there is some licencing law in the
Motor tax authority that he can use to prosecute. I believe he is mistaken and must make a application for a special disqualification in such a circumstance.If that succeed's then he has accomplished something however to follow the course of action he has taken is reckless. He has a hunch and only a hunch that the licence is not correct as he has no information regarding the vehicle which is british.So then he reckons that maybe that would invalidate the insurance, That's a hunch based on a hunch and also incorrectly prosecuted and as such i believe is a misfeasence of office or even a malicious prosectuion even though the Garda isnt doing anything immoral.

Well!the garda saw the licence but he has reasoned in his own mind that it
isnt sufficent. The fact the driver is in possession of the correct licence is good for the day in court . But i believe there are procedure's the Garda must follow in regard to his suspicion and i think that suspicion might entitle him to prosecute for no licence and apply for special disqualification order. That would be the limit of that misfeasence. The suspicion does not allow him to make grand conjectures into whether or not he thinks 'the driver' would be guilty by if IF 'the driver' may or may not then be insured based on a imagined or past/present accident and then IF the imagined possible outcome of a imagined court case as it is an established fact there has not been said acccident as this is all conjecture. So i believe therefore it is a misfeasence of office by the Garda because he should only have summoned to prosecute for the licence and then applied for a special disqualification order (which he might reasonably get or more reasonably wont even if he had applied in the first place) and then thereafter should 'the driver' have such disqaulification he would have reasonable and probable grounds to prosecute 'the driver' who has insurance and has produced their cert.However even that would be wrong as the chap would have produced their insurance cert within ten days.!!!

Jo King

templetonpeck wrote: »

Absolutely not. I wouldn't say it's malicious at all. Why would a garda want to do it.



Secondly, if you do not have a licence for the type of vehicle you are driving, your insurance will not cover you, therefore you do not have a valid insurance. If the person in question was driving a car and only had a licence for driving a motorbike, his insurance would not be valid.

Not correct. There is a European Directive on the issue. The Insurance company cannot resist a third party claim on the basis the driver does not have a licence. There is thus no offence committed under the S56 of Road traffic Act. many gardai do not know this. I know of a barrister who is securing acquittals, to charges under S56, by pointing this out to Judges when defending his clients.

pirelli

Jo King wrote: »

Not correct. There is a European Directive on the issue. The Insurance company cannot resist a third party claim on the basis the driver does not have a licence. There is thus no offence committed under the S56 of Road traffic Act. many gardai do not know this. I know of a barrister who is securing acquittals, to charges under S56, by pointing this out to Judges when defending his clients.

So There is a sheriff in the town. Well done JO.

Do you know what Eu directive it is.?

templetonpeck

Jo King wrote: »

Not correct. There is a European Directive on the issue. The Insurance company cannot resist a third party claim on the basis the driver does not have a licence. There is thus no offence committed under the S56 of Road traffic Act. many gardai do not know this. I know of a barrister who is securing acquittals, to charges under S56, by pointing this out to Judges when defending his clients.

Well that's the first I've heard of it. Insurance Policies are very clear on what you are covered for. EG on mine it clearly states that I am insured only if I have a license to drive the type of vehicle insured under the policy.

I'd be very interested in knowing what directive negates this.

Jo King

templetonpeck wrote: »

Well that's the first I've heard of it. Insurance Policies are very clear on what you are covered for. EG on mine it clearly states that I am insured only if I have a license to drive the type of vehicle insured under the policy.

I'd be very interested in knowing what directive negates this.

Directive 84/5 EEC. Your insurance company cannot resist a claim from a third party on the grounds that you or indeed anybody driving the car with your permission have no licence. The insurance company may however be able to sue you for breach of contract if they have to pay out on a claim. The point is you will not be guilty of the criminal offence under S56.

pirelli

Jo

Thank you thats great. That is really appreciated, I promise i wont go around bragging that i figured all this out myself. I will give you full credit, Fair play to you.

pirelli

So Now that we the people of boards.ie with the help of JO King have established that there is a Directive 84/5 EEC that prevents any reasonable or probable cause that proves that the case was brought is unreasonable and unprobable and is therefore as the cop knows the chap is insured a malicous prosecution.
Does anyone disagree????

dermot_sheehan

If that logic prevailed then no one could be convicted of driving without insurance ever.

The Directive is implemented in Ireland by the MIBI agreement http://transport.ie/upload/general/6479-0.pdf

Directives only have direct effect when there has been failure to transpose and only against the state.


Section 56 of the Road Traffic Act provides:

(1) A person (in this subsection referred to as the user) shall not use in a public place a mechanically propelled vehicle unless either a vehicle insurer, a vehicle guarantor or an exempted person would be liable for injury caused by the negligent use of the vehicle by him at that time or there is in force at that time either—


( a ) an approved policy of insurance whereby the user or some other person who would be liable for injury caused by the negligent use of the vehicle at that time by the user, is insured against all sums without limit (save as is hereinafter otherwise provided) which the user or his personal representative or such other person or his personal representative shall become liable to pay to any person (exclusive of the excepted persons) by way of damages or costs on account of injury to person or property caused by the negligent use of the vehicle at that time by the user, or


( b ) an approved guarantee whereby there is guaranteed the payment by the user, or some other person who would be liable for injury caused by the negligent use of the vehicle at that time by the user, of all sum without limit (save as is hereinafter otherwise provided) which the user or his personal representative or such other person or his personal representative shall become liable to pay to any person (exclusive of the excepted persons) by way of damages or costs, on account of injury to person or property caused by the negligent use of the vehicle at that time by the user.

so to avoid prosecution you either need to be an exempted person, or have the vehcile subject to a policy of insurance or subject to a gurantee policy.


The next question is whether the MIBI in effect acts as an insurer for all of us. It doesn't as firstly there's no insurance contract with us as we provide no consideration to it, secondly the Road Traffic Act refers to approved insurance policy, which is defined in section 62:

62.—(1) A policy of insurance shall be an approved policy of insurance for the purposes of this Act if, but only if, it complies with the following conditions:
[GA]

( a ) it is issued by a vehicle insurer to a person (in this Act referred to as the insured) named therein;
[GA]

( b ) the insurer by whom it is issued binds himself by it to insure the insured against all sums without limit which the insured or his personal representative all become liable to pay to any person (exclusive of the excepted persons) whether by way of damages or costs on account of injury to person or property caused by the negligent use, during the period (in this Act referred to as the period of cover) specified in that behalf in the policy, of a mechanically propelled vehicle to which the policy relates, by the insured or by any of such other persons (if any) as are mentioned or otherwise indicated in that behalf in the policy;
[GA]

( c ) the liability of the insurer under the policy is not subject to any condition, restriction, or limitation prescribed as not to be inserted in an approved policy of insurance; and
[GA]

( d ) the period of cover is not capable of being terminated before its expiration by effluxion of time by the insurer save either with the consent of the insured or after seven days notice in writing to the insured.
[GA]

(2) A policy of insurance which complies with the conditions specified in subsection (1) of this section shall not be prevented from being an approved policy of insurance merely by reason of its containing provisions additional to and not inconsistent with the provisions required by those conditions.
[GA]

(3) A policy of insurance shall not be prevented from being an approved policy of insurance merely by reason of the insurance being subject to the following limitation and the following exception or either of them:
[GA]

( a ) the limitation thereof in so far as it relates to injury to property, to the sum of one thousand pounds in respect of injury occasioned by any one act of negligence or any one series of acts of negligence collectively constituting one event,
[GA]

( b ) the exception therefrom of any liability (in excess of the common law or the statutory liability applicable to the case) undertaken by the insured by special contract.

Jo King

The position is that there must be some insurance policy on the vehicle to avoid conviction. The MIBI does not become liable if there is a policy of insurance on the vehicle. There is n o requirement in S56 that the driver himself has taken out the policy. The only requiremnt is that there BE a policy. Defendants have succeeded after this has been argued.It is not well known however and so it is unlikely to show a malicious prosecution of itself.
The Directive is effective in Irish law despite being implemented by way of contract rather than legislation. This has been held by the High Court.

pirelli

Although there is still a chance I could put the clatters up the Garda and
they would then never be able to bring wrongful prosecutions under sec 56.Most of time people get adjournments and dates mixed up or no shows and they end up in jail.Like the 2000 other people who go to jail for civil debts and the other minority of tv licence holders these prosecutions are uneccessary adn sometimes malicious and a waste of court time and state prison services capacity.Is it not time to take a stand against this waste of our small justice system. If there is even a small chance then I think i willl take a case against them.

mountainyman

Jo King wrote: »

The Directive is effective in Irish law despite being implemented by way of contract rather than legislation. This has been held by the High Court.

I don't understand did the high court hold that it was an implied term of all insurance contracts? Directives do not have direct effect and if the high court is trying to give a directive direct effect then the court is ultra vires.

mm

Jo King

What the court did was to construe the implementing measure by reference to the directive. Not the same thing as directly implementing a directive.

pirelli

What is the measure, just that sec 56 is not applicable to include a violation of the licence restrictions of the licence holder.

Jo King

Article 2 of the directive. Lack of a licence cannot be used by the insurer to reject a claim. To commit the offence under s56, there has to be a situation where there is no insurer obliged to pay a third party claim.

dermot_sheehan

Article 2

1. Each Member State shall take the necessary measures to ensure that any statutory provision or any contractual clause contained in an insurance policy issued in accordance with Article 3 (1) of Directive 72/166/EEC, which excludes from insurance the use or driving of vehicles by:

- persons who do not have express or implied authorization thereto, or

- persons who do not hold a licence permitting them to drive the vehicle concerned, or

- persons who are in breach of the statutory technical requirements concerning the condition and safety of the vehicle concerned,

shall, for the purposes of Article 3 (1) of Directive 72/166/EEC, be deemed to be void in respect of claims by third parties who have been victims of an accident.

However the provision or clause referred to in the first indent may be invoked against persons who voluntarily entered the vehicle which caused the damage or injury, when the insurer can prove that they knew the vehicle was stolen.

Member States shall have the option - in the case of accidents occurring on their territory - of not applying the provision in the first subparagraph if and in so far as the victim may obtain compensation for the damage suffered from a social security body.

If Irish Courts hold this has direct effect then someone can't be convicted under s. 56 for driving with an invalid licence provided theres a policy of insurance on the vehicle.

Never knew this, nice

Our man in Havana

Would this mean where say joyriders stole a car from a person (who has insurance) and then caused damage and injury to others, would the owners insurance policy have to pay the injured parties?

UrbanFox

Bond-007 wrote: »

Would this mean where say joyriders stole a car from a person (who has insurance) and then caused damage and injury to others, would the owners insurance policy have to pay the injured parties?

Yes.

However, this is not a formal claim for indemnity under the policyholder's motor insurance policy.

If there was a certificate of insurance in existence on the vehicle at the time of an accident the insurers who issued that certificate should deal with the claim. However, they are dealing with it not as a claim against their policyholder but rather as agents of or a handling office of the MIBI.

I think that the insurance bods use the expression "insurer concerned" to describe the insurance company dealing with the case.

I have not had enough time to delve into the argument about escaping conviction under S. 56 by virtue of that EEC directive. Offhand, that strikes me as a case of misconstruction and that the acquittals are actually invalid. Per incuriam ???

pirelli

Escape conviction, What are you talking about and what aquittal's????
This thread concerns wether a lawfully insured motorist can be prosecuted
under sec 56 when the Garda prosecuting is fully aware that the motorist is lawfully insured. Can the garda speculate about the status of the motorists licence (speculate)
in regard to retrictions etc on licence as an excuse to bring a prosecution for no insurance when the status of the licence has not been established. That seems malicious to me. As for joy riders the article states that should they know the car is stolen then the directive is not relevant and also it is at the discretion of the member state whether to implement that part of the directive.

What has been misconstructed.?

pirelli

UrbanFox wrote: »

Yes.


I have not had enough time to delve into the argument about escaping conviction under S. 56 by virtue of that EEC directive. Offhand, that strikes me as a case of misconstruction and that the acquittals are actually invalid. Per incuriam ???

The Court of Appeal in Morelle Ltd v Wakeling [1955] 1 All ER 708, [1955] 2 QB 379 stated that as a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account,to be demonstrably wrong.

. It is applicable.

Jo King

UrbanFox wrote: »

Yes.

However, this is not a formal claim for indemnity under the policyholder's motor insurance policy.

If there was a certificate of insurance in existence on the vehicle at the time of an accident the insurers who issued that certificate should deal with the claim. However, they are dealing with it not as a claim against their policyholder but rather as agents of or a handling office of the MIBI.

I think that the insurance bods use the expression "insurer concerned" to describe the insurance company dealing with the case.

I have not had enough time to delve into the argument about escaping conviction under S. 56 by virtue of that EEC directive. Offhand, that strikes me as a case of misconstruction and that the acquittals are actually invalid. Per incuriam ???

That is not the case. The driver has to be driving with the permission of the owner. There is no escape from s56 for the driver of a stolen car. The position is different if the owner is driving with the owner's permission. The MIBI does not get involved. The insurer cannot resist a claim on it's policy from the victim of the driver. The insurer can attempt to recover its losses from it's own insured who may be in breach of contract. S56 does not require that the driver be a party to the contract of insurance merely that the insurer is obliged to pay on foot of the policy.

In the case of a person injured by a stolen car where there was no insurance, a claim would be made to the MIBI. The MIBI nominate one of it's member companies to handle the claim on it's behalf. It is a pre-condition to the liability of the MIBI that there is no insurance purporting to cover the vehicle.

pirelli

i do not believe there is such inconsistent statutory provision.
unless you are reffering to (5) of section 56 of the road traffic act which would be already covered in the clause in the above mentioned EEC directive and so despite reading all the licencing laws i can find no inconsistency although there are so many...

pirelli

gabhain7 wrote: »

If that logic prevailed then no one could be convicted of driving without insurance ever.

The Directive is implemented in Ireland by the MIBI agreement http://transport.ie/upload/general/6479-0.pdf

Directives only have direct effect when there has been failure to transpose and only against the state.


Section 56 of the Road Traffic Act provides:



so to avoid prosecution you either need to be an exempted person, or have the vehcile subject to a policy of insurance or subject to a gurantee policy.


The next question is whether the MIBI in effect acts as an insurer for all of us. It doesn't as firstly there's no insurance contract with us as we provide no consideration to it, secondly the Road Traffic Act refers to approved insurance policy, which is defined in section 62:

It is reffering to the insurer and not the insured when it mentions approved policy of insurance.
What is a policy but the peice of paper its written on i.e the certificate or policy schedule, it would seem that we are arguing about different policies and i think that is why there ia a directive.

pirelli

I went to one of the finest solicitor's in the country courtesy of the insurance company, as the insured is clearly EHm! in the right the insurance company have hired the finest to represent the inured driver. As Jo King explained there is an Eu directive. This as it turns out is true.

There is a Eu directive and it is very useful although I am not sure that the insurance company's solicitor's will pay my cost's based on just the EU Directive as a defence.


Recap:

Citizen: Person produces insurance within ten days and also licence.
Garda: Prosecutes for non production of insurance based on an assumption ( well educated guess: contacts motor office) that the licence is invalid for engine capacity .