Can penalty points be applied to company?

Johnny Lamp · 28-09-2009 3:12pm #1

Where a company has several vehicles and drivers (reps, managers, vans etc) and a fixed penalty notice is issued for speeding in one of these (by a Gatso camera) what happens when the co. doesen't keep records of who driving that vehicle at that time?

Also what happens if the co. does not respond to the speeding fine (either doese't receive it or does not return ir)- does the company get summonsed?

seamus · 28-09-2009 3:19pm

The vehicles are normally registered to a director of the company. In the case that director receives the points notification and it is his/her responsibility to send it back with the name of the person who was driving at the time.

Anecdotal evidence suggests that if they cannot name someone, the director is then given the points and the company must pay the fine. However, I can't see how the law would allow them to fine an individual who was not driving at the time.

But yes, if you ignore the summons, the registered owner will get summonsed to court, and if they do not appear they will receive a larger fine and points in their absence.

I'm not sure if it's possible to register a vehicle to a company alone, afaik you must name someone on the VLC as the DOE needs the name of an individual to trace the vehicle to.

Jo King · 28-09-2009 3:38pm

Points apply to a licence, not a vehicle. There is a separate offence of refusing to identify a driver. There is also a problem with the wrong driver being identified by the company. Sometimes people who have left a company find heir name being given in response to a notice.

dermot_sheehan · 28-09-2009 4:02pm

Jo King wrote: »

Points apply to a licence, not a vehicle. There is a separate offence of refusing to identify a driver. There is also a problem with the wrong driver being identified by the company. Sometimes people who have left a company find heir name being given in response to a notice.

section 19 Road Traffic Act 2004
http://www.irishstatutebook.ie/2004/en/act/pub/0044/sec0019.html#partiii-sec19

The natural person who physically registered the vehicle is liable then

Johnny Lamp · 28-09-2009 5:24pm

So does that mean where a secreatry signed at the dealership to collect a van (not for her) he/she is liable where her employer is unable to identify who was driving at the time, i.e. pool car/van?

Seems a minefield to me...

Our man in Havana · 28-09-2009 11:24pm

It is a legal minefield, hence why alot of these type offences seem to get dropped and the offenders get away scot free.

It was in the Indo last week that where a registered owner could prove or at least cast doubt that they were not the driver and they could not identify the driver the case was dropped.

Johnny Lamp · 30-09-2009 5:18pm

Yes, but the company doesen't want to be prosecuted for not naming the driver when it can't because it (a) doesn't know or (b) never got the original notice.

We've a few cars on the road so it's only am atter of time as we often don't get post or it's gone to a wrong address.

Johnny Lamp · 02-10-2009 11:40am

Got some advise from a business organisation we're members of; APparently the co. directors as listed on CRO will take the points if no-one nominated :eek:. Also 2 montsh ago, new practise disallowed the old chestnut of "I never received the fine, your honour"

Our man in Havana · 02-10-2009 11:59am

Also 2 montsh ago, new practise disallowed the old chestnut of "I never received the fine, your honour"

It still works. Judges are ignoring the original ruling.

eoinf · 12-10-2009 5:31pm

Bond-007 wrote: »

It still works. Judges are ignoring the original ruling.

does it still work?

Reloc8 · 12-10-2009 8:45pm

CRO are wrong in respect of who get the points for speeding, if that's what they said - only a person proven to have been driving can get convicted of a driving offence...and the points for speeding are applied when a person is convicted of the driving, automatically not by court order or anything.

Sequence :

detection - notice to registered owner of vehicle (so yeah company via secretary if appropriate) stating they will be charged with driving if they don't name a driver - reply by owner naming driver (or admitting they were driving) - notice to named driver if not owner advising them they've been nominated and giving them a chance to name someone else prosecute last named driver who doesn't nominate anyone else - convict & points to driver.

If a company does not name a driver they will not infrequently be prosecuted for failing to do so. If this is proven to have occurred with consent, connivance or neglect of an officer of the company they are open to prosecution.

Making a false statement on the form is of course an offence. Same applies re officer

What I would have to check is whether penalty points apply to an offence of failing to name the person driving - I have a gut feeling that they do, in a sort of bizarre way and this could happen to a company officer...I also have an intuition that its only 2 as opposed to 4...unsure on this last bit.

As regards 'what works' I would think caution on this area as I don't think the Boards want to be seen to be offering a forum for committing perjury...

dermot_sheehan · 12-10-2009 9:08pm

I think you're missing something Coler,

if a company owns a vehicle and fails to name a driver, then:

(1) For the purposes of subsection (11) of section 103 (inserted by section 11 of the Act of 2002) of the Principal Act and subsection (10) of section 3 (inserted by section 12 of the Act of 2002) of the Act of 1975 where the registered owner of the mechanically propelled vehicle concerned does not furnish the information specified in either of those subsections and the owner is not an individual, then—
(a) where the vehicle has been registered in the State but has not been first licensed under the Regulations of 1992, the individual who applied for registration under section 131 of the Finance Act 1992 ,
(b) where the vehicle has been licensed in the State under the Regulations of 1992—
(i) subject to subparagraph (ii), the individual who most recently applied to have the vehicle licensed before the commission of the alleged offence, or
(ii) where ownership of the vehicle has been transferred from another person to the owner before the commission of the alleged offence and the registered owner as the new owner of the vehicle has not applied to have it licensed under the Regulations of 1992, the individual who signed as the new owner of the vehicle the notification of transfer of vehicle ownership under the Regulations of 1992 relating to the vehicle,
(c) where the vehicle is used under a trade licence issued under section 21 of the Finance (No. 2) Act 1992 , the individual who most recently applied for the licence before the commission of the alleged offence, or
(d) where the vehicle was the subject of a hire-purchase agreement or a letting agreement at the time of the commission of the alleged offence—
(i) the individual who was in possession of the vehicle under the agreement, or
(ii) where the person who was in possession of the vehicle under the agreement is not an individual, the individual who made the agreement with the owner for possession of the vehicle under the agreement,
is deemed to have been driving or otherwise using the vehicle at the time of the alleged offence.

the person who signed the transfer is liable for both the fine and points.

This is to stop people avoiding penalty points by setting up shelf companies that own their vehicles.

Our man in Havana · 12-10-2009 9:17pm

the person who signed the transfer is liable for both the fine and points.

With a non driving granny as the company secretary.

Reloc8 · 12-10-2009 9:19pm

Hi Gabhain,

The point though is that although they are deemed driving at the time of the offence, as you note in the section you quote it applies for the purposes of s. 103(11) of the 1975 Act, as inserted by S. 11 of the 2002 Act. Its however a little bit more technical than that provision in isolation seems to say.

If you go back to S. 103(11) of the 1975 Act, that just provides that the owner who doesn't answer the notice is presumed until the contrary is shown to have been driving.

Link to S. 103
http://www.irishstatutebook.ie/2002/en/act/pub/0012/sec0011.html#sec11

So the person who signed the transfer is liable only if they can not show they were not driving (sometimes this is easy e.g. proof of absence from state/photo of driver clearly male, person who signed transfer is a woman. It would be pretty rich to be done for speeding when you were not the driver, in all fairness. In case of a registered owner who is not a natural person the presumption attaches to the person signing the transfer.

A defendant here would have to show on the balance of probabilities that they were not driving, as opposed to beyond a reasonable doubt, for completeness.

A person who didn't fill in the form would of course leave themselves open for not filling the form as long as this prosecution was commenced within six months of them failing to do so (i.e. summons applied for within six months). By the time it is realised that someone will get away scot free as they were probably not the driver, and did not fill in the form, it is usually too late to prosecute either the driver or the person who did not fill in the form.

Our man in Havana · 12-10-2009 9:20pm

That would also be a get out for a registered owner where they could prove they were not driving.

There surely must be a separate offence of failing to ID the driver.

dermot_sheehan · 12-10-2009 9:39pm

The problem is section 19 provides that the registered owner is

is deemed to have been driving or otherwise using the vehicle at the time of the alleged offence.

I accept what Coler said that this applies "for the purposes of the section 103(11) presumption",

I think the word "deems" in section 19 however turns the presumptive rule into a conclusive one, but I could be wrong.

I know for the purpose of drink driving prosecutions the original road traffic act which made Motor Bureau of Road Safety Alcohol certificates conclusive evidence was unconstitutional, however in this case the act is criminalising a person for permitting a car registered by them to be used for a road traffic offence in a manner in which the driver can't be identified. I know of no decisions on the interactions of these two sections however.

for the circuit court judgment on the evidential presumption in fixed penalty notices having been received if posted, see here
http://www.courts.ie/Judgments.nsf/bce24a8184816f1580256ef30048ca50/9bfdf7d55bf6fdb780257633005279dc?OpenDocument

Reloc8 · 12-10-2009 10:25pm

There are no situations where you could be convicted of a crime without having committed the factual act or omissions constituting the offence - so no driving = no points. Even where a mental element is not requried for guilt (strict liability) you have to actually commit the offence to be guilty.

Equally I think the two sections read together are clear that the 'deeming' is solely 'for the purpose of' s. 103, which contains the presumption - so it wouldn't be in any way conclusive. It just nominates a person presumed to have driven (until the contrary is shown) where the reg. owner is not a natural person.

There isn't any High Court judgment on the point - but I can't see it being taken up there.

Handy link to that Circuit Court decision & thanks for same. It has not been widely applied.

JD Dublin · 04-06-2010 3:49pm

Does anyone ever see a member of the police force on a mobile? I'm going to start sriting down reg numbers, times and date coz I'm sure if a guard spotted me on a mobile, I'd get the points. So folks, what about a spot of reporting? Any members of boards.ie spot any members of the police force on their mobiles while driving?? List the reg numbers, dates and times to this post.

Hooch · 04-06-2010 4:07pm

JD Dublin wrote: »

Does anyone ever see a member of the police force on a mobile? I'm going to start sriting down reg numbers, times and date coz I'm sure if a guard spotted me on a mobile, I'd get the points. So folks, what about a spot of reporting? Any members of boards.ie spot any members of the police force on their mobiles while driving?? List the reg numbers, dates and times to this post.

List away.....

Irish Statute Book wrote:

Section 3 Road Traffic Act 2006
3.— (1) A person shall not while driving a mechanically propelled vehicle in a public place hold a mobile phone.

(2) Subsection (1) does not apply to a member of the Garda Síochána, an ambulance service or a fire brigade of a fire authority (within the meaning of the Fire Services Act 1981 ) who is acting in the course of his or her duties and holding a mobile phone in relation to the performance of his or her duties.

JD Dublin · 04-06-2010 4:19pm

And of course guards holding mobile phones while driving is always in the course of their duties - yeah right. While we're at it let's start listing official cars parked on double-yellow lines and in disabled drivers spots.

Hooch · 04-06-2010 4:33pm

JD Dublin wrote: »

And of course guards holding mobile phones while driving is always in the course of their duties - yeah right. While we're at it let's start listing official cars parked on double-yellow lines and in disabled drivers spots.

Do you want me to quote legislation exempting Gardaí from that too??

(While I agree with gardaí never parking in Disabled spots the legislation is there.....)

JD Dublin · 04-06-2010 4:39pm

Look Mr Nice Guy Always - there is a need to be acting within the law and be seen to be acting within the law.

While one can 'get away' with this by quoting the law, I am merely making the observation that the attitude of 'theres one law for me and another for you' does engender a certain cynicism in the general public.

Now, would you agree with that last statement?

MagicSean · 04-06-2010 4:49pm

JD Dublin wrote: »

Look Mr Nice Guy Always - there is a need to be acting within the law and be seen to be acting within the law.

While one can 'get away' with this by quoting the law, I am merely making the observation that the attitude of 'theres one law for me and another for you' does engender a certain cynicism in the general public.

Now, would you agree with that last statement?

By the same logic you could demand an ambulance with a near death patient on board stop at every red light on the way to the hospital.

Hooch · 04-06-2010 4:57pm

JD Dublin wrote: »

Look Mr Nice Guy Always - there is a need to be acting within the law and be seen to be acting within the law.

While one can 'get away' with this by quoting the law, I am merely making the observation that the attitude of 'theres one law for me and another for you' does engender a certain cynicism in the general public.

Now, would you agree with that last statement?

Did I not post the obvious already??? There is one law for normal persons and one for ES persons in the course of their duties in regards this.....

The cynicism is there, as you have pointed out, due to the fact the public see it as well if I cant then you cant....its my ball your not playing with it etc.

Laws exempting members of ES from certain sections of the Road Traffic Act are there for a reason. Simples. We need these exemptions to fully comply with our duties.

PCPhoto · 05-06-2010 12:34am

nice guy always wrote: »

Did I not post the obvious already??? There is one law for normal persons and one for ES persons in the course of their duties in regards this.....

The cynicism is there, as you have pointed out, due to the fact the public see it as well if I cant then you cant....its my ball your not playing with it etc.

Laws exempting members of ES from certain sections of the Road Traffic Act are there for a reason. Simples. We need these exemptions to fully comply with our duties.

do you consider jumping traffic "in the course of their duties" (ie sirens on because lights are red and traffic is busy, I've seen gardai and other ES bypass traffic using sirens ...but then stop at next set of lights)....I've seen gardai drive in bus lanes and re-join traffic...is that also "in the course of their duties"

I'm not trying to Garda bash here - god knows they have a terrible job and I have the utmost respect for them, but some members do abuse the "perks of the job" .....it paints a bad image of the entire force....especially with all the sh1t going on with politicians "abusing their perks"

JD Dublin · 05-06-2010 8:58pm

Okay Mr Nice guy, Im not talking about people racing to the scene of a serious road traffic accident with the lights on, getting details via a mobile phone. Im talking about using the phone in the ordinary course of the day. I would question the use of mobiles when all ES people are equipped with 2-way radios.

I'm also talking about Garda official vehicles routinely parked illegally, and members cars also routinely parked illegally. Anyone that passes Pearse St garda station will see what a joke it is. What other workplace has a car park out the front on the public street where cars are double and treble parked? How do people even access the unofficial car park? Only taxis and buses are supposed to go straight at the end of Pearse St.

So unfortunately it is cock and bull to say that ES and guards need to park on double yellow lines - how does that help them fulfill their duties? By the way glad to see that you agree this sort of behaviour does engender cynicism. By the way, most of the above comments do not seem apply to non-guard members of the ES eg ambulance men / Dublin Fire Brigade. There are no cars illegally parked outside the Fire Station on Pearse St.

Paulzx · 12-06-2010 9:13pm

PCPhoto wrote: »

do you consider jumping traffic "in the course of their duties" (ie sirens on because lights are red and traffic is busy, I've seen gardai and other ES bypass traffic using sirens ...but then stop at next set of lights)..."

Calls regularly get cancelled via radio whilst you are en route.

Would you rather the ES vehicle continue on blue lights after being cancelled just to avoid offending the easily offended?

ES vehicles do not have to be on lights and sirens to legally use bus lanes. Bus lanes are made use of to make efficient progress around the city whether on lights or not.

-Corkie- · 13-06-2010 7:43pm

JD Dublin wrote: »

Okay Mr Nice guy, Im not talking about people racing to the scene of a serious road traffic accident with the lights on, getting details via a mobile phone. Im talking about using the phone in the ordinary course of the day. I would question the use of mobiles when all ES people are equipped with 2-way radios.

I'm also talking about Garda official vehicles routinely parked illegally, and members cars also routinely parked illegally. Anyone that passes Pearse St garda station will see what a joke it is. What other workplace has a car park out the front on the public street where cars are double and treble parked? How do people even access the unofficial car park? Only taxis and buses are supposed to go straight at the end of Pearse St.

So unfortunately it is cock and bull to say that ES and guards need to park on double yellow lines - how does that help them fulfill their duties? By the way glad to see that you agree this sort of behaviour does engender cynicism. By the way, most of the above comments do not seem apply to non-guard members of the ES eg ambulance men / Dublin Fire Brigade. There are no cars illegally parked outside the Fire Station on Pearse St.

Your after making an ejet of yourself whining on that guards shouldnt use mobile phones. Using a two way radio is just as dangerous as holding a phone:rolleyes:. In fact the two way is more dangerous if you think of it.

Secondly it not nice guys or any other guards fault that proper facilities for parking arent provided. Do you think their is 100 spaces at the back of pearse st station and the guards say "ah feck it lets park illegaly outside and annoy everyone:rolleyes:. Btw in case you think im a guard im not and thank god. I would hate to be putting up with people like you.

MagicSean · 13-06-2010 8:21pm

JD Dublin wrote: »

Okay Mr Nice guy, Im not talking about people racing to the scene of a serious road traffic accident with the lights on, getting details via a mobile phone. Im talking about using the phone in the ordinary course of the day. I would question the use of mobiles when all ES people are equipped with 2-way radios.

I'm also talking about Garda official vehicles routinely parked illegally, and members cars also routinely parked illegally. Anyone that passes Pearse St garda station will see what a joke it is. What other workplace has a car park out the front on the public street where cars are double and treble parked? How do people even access the unofficial car park? Only taxis and buses are supposed to go straight at the end of Pearse St.

So unfortunately it is cock and bull to say that ES and guards need to park on double yellow lines - how does that help them fulfill their duties? By the way glad to see that you agree this sort of behaviour does engender cynicism. By the way, most of the above comments do not seem apply to non-guard members of the ES eg ambulance men / Dublin Fire Brigade. There are no cars illegally parked outside the Fire Station on Pearse St.

Actually half of gardaí are on a seperate radio system as the new tetra system is rolled out. Even then some things wouldn't be given out as there is always a chance of a member of the public over-hearing something that is confidential.

You asked about parking on double yellow lines and how it allows them to fulfill their duty. If a shop was being robbed would you expect the gardaí to drive around looking for a parking space so they could respond to it? I doubt it. I've often seen ambulances parked illegally while they tend to patients too. Please think about what you are saying.

Butch Cassidy · 14-06-2010 1:49am

JD Dublin wrote: »

Okay Mr Nice guy, Im not talking about people racing to the scene of a serious road traffic accident with the lights on, getting details via a mobile phone. Im talking about using the phone in the ordinary course of the day. I would question the use of mobiles when all ES people are equipped with 2-way radios.

I'm also talking about Garda official vehicles routinely parked illegally, and members cars also routinely parked illegally. Anyone that passes Pearse St garda station will see what a joke it is. What other workplace has a car park out the front on the public street where cars are double and treble parked? How do people even access the unofficial car park? Only taxis and buses are supposed to go straight at the end of Pearse St.

So unfortunately it is cock and bull to say that ES and guards need to park on double yellow lines - how does that help them fulfill their duties? By the way glad to see that you agree this sort of behaviour does engender cynicism. By the way, most of the above comments do not seem apply to non-guard members of the ES eg ambulance men / Dublin Fire Brigade. There are no cars illegally parked outside the Fire Station on Pearse St.

I've seen many a Garda driving up to a newsagent on a mobile phone, illegally parking and going in to the shop for lunch or whatever. Obviously there's not much you can do as the law seems fairly clear there. Maybe a complaint to the Garda Ombudsman would be in order?

With regards to the original post which is a few months old and completely separate to the above discussion... I've often wondered what if the registered owner of a car could prove they were outside of the country on the date/time an offence was commited by his/her car and could not prove or ascertain who it was driving the car? Say if a spare set of keys were possibly taken by a housemate/family member.

Victor · 14-06-2010 1:59am

SARASON wrote: »

Secondly it not nice guys or any other guards fault that proper facilities for parking arent provided. Do you think their is 100 spaces at the back of pearse st station and the guards say "ah feck it lets park illegaly outside and annoy everyone:rolleyes:. Btw in case you think im a guard im not and thank god. I would hate to be putting up with people like you.

Gardaí are paid a rent allowance of several thousand euros per year, so they can have a residence near where they are based. Many forego the convenience of such a residence and instead drive from home.So, these gardaí are paid to **not** park on Pearse Street, but yet do.

Many gardaí also express the fear of being targeted by criminals, yet leave their personal vehicles in front of their station. :rolleyes:

Can penalty points be applied to company?

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