John Donnelly (applicant) v Commissioner of An Garda Siochana, Ireland and The Attorney General (respondents).
Judicial review - Application for certiori - Revocation of small public service vehicle licence granted to the applicant two years previously - Whether unilateral mistake of fact - Whether power to revoke by reason of mistake - Statutory interpretation - Meaning of "is no longer " - Road Traffic (Public Service Vehicle) Regulations, 1963-1998.
The High Court (Mr Justice Herbert); judgment delivered November 10th, 2006.
Section 36 of the Road Traffic (Public Service Vehicle) Regulations, 1963-1998 provides that the grant of a small public service vehicle license can be reviewed and that such a license may be revoked on certain stated grounds. The words "is no longer a fit and proper person to hold such a licence" are referring and, clearly and unambiguously referring only to events which have occurred since the particular public service vehicles licence holder was last granted his or her current public service vehicles license. To extend or enlarge the meaning of the actual words used in Article 36(1) of the Regulations, 1963-1998 to cover events that occurred prior to the date of the grant of a current small public service vehicle license would be wholly unjustified having regard to the plain and unambiguous language of the article.
The High Court so held in granting the relief sought.
Paul O'Higgins SC and Caroline Cummings BL, for the applicant; Anthony M. Collins SC and Michael P. O'Higgins, BL, for the respondents.
Mr Justice Herbert commenced his judgment by outlining the relief sought by the applicant namely; an order of certiorari by way of judicial review quashing the decision of the first named respondent made on June 17th, 2004, revoking the license that had been granted to him on November 15th, 2002 to drive small public service vehicles.
Mr Justice Herbert detailed the background of the case. The applicant wished to drive a taxi and on March 11th, 2002, made an application for a license to drive public service vehicles at Harcourt Terrace Garda Station in Dublin. Paragraph 10 of the application form, known as P.S.V 15, asked if the applicant had been convicted of any traffic offences in the past five years and paragraph 11 asked whether he had been convicted of any criminal offence in the state or outside of it.
He answered "No" to the first question and responded to the second question by stating "Six years ago I was convicted of an assault. Nothing after that." The applicant spoke to Sergeant Wall in the course of his application but there was a difference in recollection between them as to what was discussed. Sergeant Wall stated that the applicant told him that he had not offended since 1991. It was averred by the applicant that "the completed form clearly stated that six years ago I was convicted of assault. I recollect that Sergeant Wall did mention the other two previous convictions to me but stated that these were not serious enough to prevent me getting a license. At no stage did I state as, Sergeant Wall now contends that I had not offended since 1991."
The completed application was sent to the superintendent at Pearse Street Garda Station. A memorandum in the file completed by Garda Byrne and Sergeant Wall stated that the applicant had two previous convictions for assault and breach of the peace and attached a copy of P.U.L.S.E. No. 312401 and 312402. It further stated that the applicant had been spoken to by the officers and had admitted that he had committed the said offences. P.U.L.S.E. 312401 related to a conviction on May 12th, 1986, for common assault, for which the applicant was fined £50.79, and P.U.L.S.E. 312402 related to a conviction on November 14th, 1991, for breach of the peace, for which the applicant was fined £25.39. The memorandum concluded by noting that the applicant had told the Garda Siochana he had not offended since 1991.
Sergeant Wall submitted a form known as P.S.V 16 where he stated that the details provided by the applicant on the P.S.V 15 form were correct. He responded to the question "is the applicant suitable in every way for the granting of a license?" by replying "Yes". The superintendent of "B" District stated on the same form that he concurred with these comments. Chief Superintendent Donoghue, Dublin Metropolitan Region, South Central Division, informed the Chief Superintendent, Dublin Metropolitan Region, Regional Traffic Division (Carriage Office) that the applicant had two previous convictions for breach of the peace and common assault from 1991 and 1986 respectively; however he had not come to the attention of An Garda Siochana since that time. Chief Superintendent Donoghue concluded that given the circumstances, including the length of time since the applicant's convictions and the fact that he had not come under any adverse attention since, and as he doubted that they could deprive the applicant of an opportunity to earn a livelihood, and accordingly he recommended the application.
By letter dated November 4th, 2002, the applicant was informed by the Carriage Department, Dublin Metropolitan Region, An Garda Siochana, that he was successful in the P.S.V driver's licence knowledge test and that the P.S.V badge would issue on payment of the grant fee. The small public service vehicle license was issued to the applicant on November 11th, 2002, and he started work as a taxi driver. In October 2003 the first named respondent became aware that the assault conviction mentioned by the applicant in the P.S.V 15 form did not refer to a minor assault as had been thought but was a reference to a more serious assault which had occurred on July 8th, 1996, at the Meath Hospital in Dublin. The applicant went to the accident and emergency department on that date, with others, and assaulted a patient there by kicking him to the head and body and also assaulted a member of the Garda Siochana who attended the incident. He later pleaded guilty to assault occasioning actual bodily harm and received a sentence of three years imprisonment which was suspended for three years.
Mr Justice Herbert said that the first named respondent decided to review the grant of the small public service vehicle license to the applicant and met with him to advise him of this. A review was conducted and by notice dated June 17th, 2004, Superintendent Collins informed the applicant that under the provisions of the Regulations, which so authorised him, he had determined that the applicant was not a fit and proper person, within the meaning of the Regulations, to hold a license and that the said license was revoked henceforth. The applicant was advised that he could appeal the decision to the District Court. By order of the High Court the operation of the said decision by the first named respondent was suspended pending the determination of an application for judicial review.
In his application for leave for judicial review the applicant averred that he had been working as a taxi driver and supporting his partner and two children from the money he earned. Due to the decision to revoke the license, he was being forced into a situation where he had to contemplate signing on and obtaining unemployment benefits. The applicant feared that even if he received benefits his net monthly outgoings would exceed his income. He concluded that he had been working as a taxi driver for nearly two years and at no time had his behaviour towards customers or his driving abilities ever been called into question.
Mr Justice Herbert said that it was claimed by the applicant and denied by the respondents that the decision of the first named respondent on June 17th, 2004, revoking the small public service vehicle license granted to the applicant on November 11th, 2002, was on the facts ultra vires the powers conferred on him by Article 36(1) of the Regulations. Counsel for the applicant further submitted relying on the principles stated in Webb v Ireland IR 353 and Abrahamson and others v The Law Society of Ireland and the Attorney General 1 I.R 403, that he had a legitimate expectation that subject only to the provisions of Article 36(1) of the regulations, he was entitled to retain the benefits of the small public service vehicle license granted to him on November 11th, 2002, for the full statutory period of five years.
Citing the decision in Director of Public Prosecution (Ivers) v Murphy , it was submitted by the respondents that the clear purpose of the Regulations was to protect the members of the public who had occasion to use small public service vehicles and to remedy the mischief of unfit and unsuitable persons holding a small public service vehicles license. Accordingly, it was submitted that the court should adopt a purposive interpretation of Article 36(1) of the Regulations in order to give effect to the clear intention of the Minister and to avoid the absurd result of a literal interpretation which would wholly defeat this intention. The respondent submitted that Article 36(1) of the regulations could be read in this manner without rewriting it which they accepted would be to infringe the constitutional doctrine of separation of powers.
Mr Justice Herbert said that he found Sergeant John Wall (retired) to be a careful and truthful witness. He recalled having spoken to the applicant on March 11th, 2002, after Garda Byrne had first spoken to the applicant, because the applicant was anxious to speak to a more senior member of An Garda Siochana. He had read the application form, P.S.V 15 which had been completed by the applicant. The applicant then signed this form in his presence. He had submitted the Enquiry and Report Form, P.S.V dated June 3rd, 2002, to the Superintendent of "B" District stating, amongst other things that the particulars given by the applicant on that form were correct.
Mr Justice Herbert considered that the answer made by the applicant at question 11 of form P.S.V 15 which was completed by him on March 11th, 2002, was substantially correct and accurate. Mr. Justice Herbert found that by the words, "nothing after that", the applicant was referring to the events of June 8th, 1996, at the accident and emergency department of the Meath Hospital which had occurred five years and nine months previously and in respect of which he had pleaded guilty and had been convicted on July 29th, 1998. Mr Justice Herbert stated that Sergeant Wall had assumed that the applicant, in his reply to question 11, was referring to the conviction of November 14th, 1991, and had simply underestimated the passage of time. The sergeant then reported to the superintendent at Pearse Street Garda Station, intending to be accurate, that the applicant had stated that he had not offended since 1991. Mr Justice Herbert found that the Garda Siochana authorities had very carefully and conscientiously considered and assessed the applicant's request for a small public service vehicle license but the decision to grant the license sought by the applicant was based on a unilateral mistake of fact, the commissioner having been misled by the report and recommendations made to him by his officers, as to the applicant's previous convictions. Mr Justice Herbert found that the applicant said and wrote nothing to mislead or to confuse the Garda Siochana authorities, in particular Garda Byrne and Sergeant Wall. The source of the problem was stated to be the incomplete state of the P.U.L.S.E system records in March 2002.
In the light of the above Mr Justice Herbert considered the Road Traffic (Public Service Vehicle) Regulations, 1963-1998 (the Regulations). Article 36(1) of the Regulations allowed the first named respondent to revoke a small public service vehicle license at any time after the license had been granted. The power could only be exercised in one of three clearly defined circumstances. Two of these circumstances did not apply in the applicant's case as during the currency of the license he had not been convicted of an offence under s. 53 of the Road Traffic Act, 1961 nor had he been convicted of an offence which in the opinion of the first named respondent would render him unsuitable to hold such a license. The respondent could also revoke the license if he considered that the holder was "no longer a fit and proper person" to hold such a license. For the purpose of the revocation this was the ground which was relied on. Mr Justice Herbert found that the clear intention of the Minister was to provide an essential power to regulate, in the public interest, persons to whom a license had been granted. The first ground was not restricted to situations where the holder of the license had been convicted of an offence during its currency.
The court found that it was clearly intended by the Minister to cover any other acts or omissions by the holder of the license which in the opinion of the first named respondent would render him no longer a fit and proper person to hold such a public services license. Mr Justice Herbert concluded that in his judgment the words "is no longer a fit and proper person to hold such a license", are referring and, clearly and unambiguously referring only to events which have occurred since the particular public service vehicles license holder was last granted his or her current public service vehicles license. If the Regulations are to have any rational and consistent meaning, and it must be inferred that it was the intention of the Minister that they should have such a meaning, the obvious relevant time when the holder had to have been accepted as such a fit and proper person to hold a public service vehicles licence, was when that licence was last granted to him by the first named respondent.
Mr Justice Herbert said that it was not appropriate to attempt to extend the actual meaning of the words that were used in Article 36(1) of the Regulations so as to cover events that had occurred prior to the date of the granting of the current public services vehicle license. The words used in the article were plain and unambiguous and to decide otherwise would have involved the court in legislating rather then in interpretation by, in effect, introducing the non-existent words, and "never was" after the words, is "no longer" in the phrase, "is no longer a fit and proper person to hold such a license".
For the reasons set out above Mr Justice Herbert held that the decision of the first named respondent made on June 17th, 2004, was ultra vires the powers conferred on him by Article 36(1) of the Regulations. Accordingly an order was made that the decision of the first named respondent made on June 17th, 2004, be delivered up for the purpose of being quashed.
Solicitors: Costello and Co (Dublin) (for the applicant); Chief State Solicitor (for the respondents).
• Arran Dowling-Hussey, barrister