High Court of Ireland Decisions

1. These proceedings arise out of a Case Stated by Judge Gerard Haughton sitting at the District Court in Cork City seeking directions as to whether three summonses addressed to the accused are fundamentally defective. All three Summonses arise out of alleged infringements by the accused of the provisions of European Communities (Road Transport) (Recording Equipment) Regulations 1986 (S.I. 393 of 1986). All three offences were alleged to have occurred on 21st June 1996 at North Ring Road, Ballyvolane, in Cork City and relate to a commercial motor vehicle which comes within the provisions of the said statutory instrument.

2. The following were the allegations in each of the Summonses:-

3. A general objection is taken on behalf of the accused on the basis that Article 19 of the Council Regulation obliges Member States to adopt laws covering certain matters, but in fact Statutory Instrument No. 393 of 1986 goes beyond what is required by Article 19 and imposes obligations and creates offences which are not strictly required by the Council Regulation. While that would certainly appear to be so,. these proceedings are not concerned with alleged offences which are outside the EEC Regulation, and I would not propose to comment on the validity of any offence which is based on a breach of such provisions. I think it is sufficient to say that Regulation 15 of the Statutory Instrument specifies that any person who contravenes certain specific articles of the Council Regulation shall be guilty of an offence, and it is in respect of such alleged contraventions that the first two of these Summonses have been brought. Regulation 15 clearly creates a series of offences in relation to such contraventions.

4. In relation to the specific Summonses, and the arguments made against their validity, I would comment as follows.

5. In my view this charge is quite clear. Article 15(5) of the Council Regulation specifies certain matters which each crew member shall enter on his record sheet and alleges that no such entries were made. Regulation 15 of the Statutory Instrument provides that any person who contravenes Article 15(5) of the Council Regulations shall be guilty of an offence. In my view this charge is absolutely clear and it should be proceeded with.

6. This charge relates to an alleged contravention of Article 15(7) of the Council Regulation which provides:-

7. The charge alleged that the accused failed to produce record sheets "giving full details of all relevant periods for not less than the given days preceding the time when the check was made." In my view this is an extremely convoluted formula, the meaning of which I find it difficult to understand. I am sure it is intended to refer to the record sheets as set out in Article 15(7), but, although there is a reference to that article, I think that the accused is certainly entitled to a much clearer description of the offence charged. I do not think that the charge needs to specify the actual dates, provided it used the words set out in Article 15(7), but I think the charge is insufficient in the light of its failure to do either.

8. I think this is a defect which comes within Rule 88 of the 1988 District Court Rules, which I understand were those in force at the relevant time. There is an omission in the charge, in that it does not adequately specify the relevant dates, but I do not think it is for me to determine whether such omission has misled or prejudiced the accused or might affect the merits of the case. This is a determination which must be made by the District Judge pursuant to Rule 88(3) upon hearing such evidence or arguments as he thinks fit. I would, therefore, remit the matter back to the District Court so that the second charge may be further dealt with by the learned District Court Judge under Rule 88 and in accordance with the principles set out in The State (Duggan) v Evans 112 ILTR 61

9. For some reason which I find impossible to understand, this charge is not brought under Regulation 15 of the 1986 Regulations, but is purported to be brought under earlier regulations of 1979 and 1980, and is a complaint of failure to comply with certain EEC Regulations of 1970, as amended. In fact the 1970 Regulation has been repealed by the Council Regulation No. 3821/85, and the 1979 Statutory Instrument also referred to in the charge has also been revoked. Accordingly, these charges have been brought in respect of an alleged offence which did not exist at the time the charges were brought, and the Summons is clearly fundamentally defective.

10. Accordingly, I would advise that:-