Charges against a Co Wexford man running an allegedly unlicensed taxi service − brought following a covert National Transport Authority (NTA) operation − will be remitted to the District Court following a Court of Appeal decision.
In August 2022, an NTA enforcement officer – with assistance from An Garda Síochána – carried out a “covert test purchase”, posing as a passenger when availing of the man’s allegedly unlawful taxi service.
The man drove the NTA officer to a destination, before the latter identified himself. He recovered the money he’d used to pay his fare to keep as potential evidence.
Charges were subsequently brought against the allegedly unlicensed taxi driver in the District Court.
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These charges were dropped when a judge concluded that the NTA officer was, under the Taxi Regulation Act 2013, empowered only to take enforcement action against licensed operators – not unlicensed operators.
The NTA officer accepted during the District Court trial that provisions for carrying out a test purchase or “setting a trap” were not set out under legislation.
The High Court upheld the District Court’s decision following an appeal brought by the NTA. This was appealed to the Court of Appeal.
In a judgment, Ms Justice Nuala Butler, on behalf of the three-judgment Court of Appeal, said a core issue in the case was the extent to which an investigator – ie, the NTA officer – could take steps in the course of their duties which did not have an explicit basis in law.
In the Court of Appeal proceedings, the allegedly unlicensed taxi driver accepted that an enforcement officer may take steps in an investigation that are not explicitly set out in legislation, provided it does not go beyond what an ordinary person could do without legal powers.
However, he maintained the District Court judge had been right to dismiss the charges against him, arguing that in conducting the covert test purchase, the investigator presented himself as exercising a power under law which he did not have.
Ms Justice Butler noted that no statutory power is required by an investigator to do something an ordinary member of the public can do.
“If a member of the public is lawfully entitled to do something, then a person appointed under statute for a particular purpose is also entitled to do that thing unless in doing so he breaches a personal right of an affected person including a suspect in a criminal investigation,” she said.
The judge said it was incorrect that a member of the public could not have carried out a covert test purchase. She said it was incorrect to assume that a covert test purchase could not be made by an investigator without expressed provision in law to do so.
Ms Justice Butler concluded that the High Court was incorrect in upholding the District Court’s decision to dismiss the charges against the allegedly unlicensed taxi driver. She said the NTA’s appeal should be upheld, and the case be remitted back to the District Court.
