The law does not require a mandatory driving ban for those convicted of careless driving causing death if it is their first offence, the Court of Appeal has decided.
The court had heard a civil appeal brought by Colleen McCann, who is originally from Newry and was given a 12-month fully suspended sentence for careless driving that caused the death of her friend, 17-year-old Ciaran McKenna, 10 years ago in Co Monaghan. Mr McKenna, a minor footballer with Crossmaglen Rangers, was killed in the collision at Maghernakill, Castleblayney, on July 30th, 2012.
McCann (27) with an address at Drumacon, Castleblayney, Co Monaghan, was deported from the US in 2017 to face charges in relation to the crash. She is married to James Flynn (31), of Raven’s Glen, Newry, Northern Ireland who is awaiting trial charged with the robbery of €7,000 from Lordship Credit Union in Bellurgan, Co Louth, on January 25th, 2013.
After imposing a 12-month suspended sentence on McMcCann at Monaghan Circuit Court in October 2021, Judge John Aylmer adjourned the matter of any driving ban to be imposed, after hearing that her team were challenging the legislation involved. At the sentencing hearing, Judge Aylmer said McCann had met the case in a “cowardly fashion” by moving to the United States, delaying the case by years. He said McCann had “undoubtedly” caused the McKenna family more stress.
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When entering her bond to keep the peace for the duration of the 12-month suspended sentence, McCann undertook not to drive until the legal question of mandatory disqualification was resolved.
McCann’s legal team claimed there was a question mark over whether or not, according to legislation, her first conviction would amount to a “qualifying” offence. According to the Road Traffic Act, a “qualifying” offence would mean a “consequential” – or mandatory – driving ban.
At the appeal hearing, McCann’s barrister, Martin O’Rourke KC (King’s Counsel), told the three-court judge there was a minimum period of driving disqualification for a “qualifying” offence but that his client’s first conviction for careless driving did not meet that threshold.
Counsel said that under the relevant sections of the Road Traffic Act, a “qualifying” offence to trigger the mandatory ban was in fact two or a number of driving convictions inside the previous three years. Mr O’Rourke said any disqualification in this case remains discretionary and not mandatory.
Mr O’Rourke contended that if a person is convicted of careless driving on indictment, even if that offence causes death, there was no mandatory disqualification provided for and the court should not therefore impose a “penal” sanction.
Responding for the State, Sunniva McDonagh SC, said that when someone was judged to be unfit to hold a driving licence it was not “penal” in its character but a matter of “public safety”. She said the relevant section of the Road Traffic Act provided for a disqualification order for first offences.
Counsel said there was no reason why McCann’s offence could not be read as her first “qualifying” offence to justify the mandatory ban.
Delivering judgment at the Court of Appeal on Wednesday, Mr Justice Patrick McCarthy said the court had been asked by the Circuit Court whether or not, upon conviction for the offence of careless driving causing death, tried on indictment, contrary to Section 52 (1) and (2)(a) of the Road Traffic Act, a person is liable to a mandatory disqualification for not less than four years in the case of a first offence and not less than six years in the case of a second or subsequent offence.
In the Court of Appeal’s answer, Mr Justice McCarthy said: “A mandatory disqualification from holding a driving licence arises for such an offence only if there have been at least two previous offences contrary to Section 52 – whether tried summarily or on indictment and whether involving death or serious injury or not – committed within three years prior to the offence.”
“There is no power to decline to impose a mandatory disqualification order in cases dealt with on indictment where the conditions for such an order are fulfilled,” he said.
Mr Justice McCarthy said the case was to be returned to Monaghan Circuit Court for finalisation.