The Minister for Transport Darragh O’Brien has committed to closing off the loophole by which errant drivers can avoid being disqualified if they accept a temporary or “ancillary” disqualification instead of penalty points.
O’Brien has set himself a deadline of the end of the month and appears to have been bounced by a report last month in this paper that the practice is continuing, despite the amendment to close the loophole off having been included in the 2024 Road Traffic Act, which was passed last April. The commencement order – which brings the provision into effect – has not been signed by O’Brien or his predecessor Jack Chambers.
The reason for the delay, according to the Department of Transport, is that it needs to be sure that commencing the provision would not have any negative effect on the process by which court sanctions, such as penalty points and disqualifications, are matched up to individual drivers and their licences. It is now able to proceed, says the department. The explanation is not as implausible as it might sound. Road traffic offences are often appealed on technicalities.
At the centre of this apparently minor kerfuffle – which actually has wider ramifications than you might think – is the Kildare District Court and one judge in particular, Judge Desmond Zaidan.
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The issue first came to light in November 2023 when a young driver avoided a six-month ban for driving through a Garda checkpoint. Instead, she got an ancillary disqualification order. The law doesn’t specify the period of disqualification, and the driver in question was given a 24-hour ban over a weekend. Public annoyance quickly led to a commitment to close the loophole.
This disqualification was in fact made by a visiting judge standing in for Judge Zaidan who initially heard the case, but the Kildare judge has been associated with several subsequent ancillary orders.
In December 2023, Judge Zaidan granted a 24-hour ancillary disqualification order to a 29-year-old man who had failed to pay a fixed charge notice penalty for allegedly holding a mobile phone while driving.
Cue more public annoyance and a renewed commitment to close the loophole in the coming Road Traffic Act the following April.
It came as something of surprise, then, last December when Judge Zaidan handed down an ancillary order to a driver who admitted using a mobile phone while driving. Even more surprising was his decision to give the same driver another 24-hour driving disqualification order in March this year for not wearing a seat belt.
It is hard to get a handle on how widespread the practice of giving 24-hour ancillary orders is. According to the Department of Transport, it was the reporting of the practice in this paper, along with communications from the Director of Public Prosecutions, that alerted them to the loophole and led to the decision to close it off.
Neither the Department of Transport nor the Courts Service – which provides it with details of court judgments and orders – routinely track ancillary disqualifications, as collating them would be laborious and time-consuming.
It would appear, then, that a law has been passed by the Oireachtas in response to the sentencing policy of, largely, one District Court judge. It seems a bit excessive, and you would have though a quiet word in Judge Zaidan’s ear by the president of the District Court would have been a better idea.
Legal scholars, however, would be quick to tell you why, in fact, that wouldn’t be such a good idea.
Firstly, there is the whole issue of judicial discretion when it comes to sentencing. Giving judges some leeway is necessary to ensure that a punishment fits the crime, which ensures public faith in the legal system.
They would also point out that the Director of Public Prosecution had the option to refer Judge Zaidan’s decision to the High Court on a point of law but did not do so. This fact would seem to indicate they didn’t think they would win. Listen to the lawyers long enough and you will begin to see how it was easier to change the law.
But there is a more subtle argument in favour of this approach as well.
Kildare is a long way from Washington, DC, but events there might also convince you that going through a legislative pantomime to curtail sentencing by one or two judges in a lower court is not as absurd as it seems. The US is – some believe – heading for a full-on constitutional crisis because it has gone the opposite direction, with the government of the day, led by the president, openly disobeying and criticising judges it does not agree with, as well as calling for their impeachment.
The most recent – and most serious – example happened over the weekend when the Trump administration did not comply with an order from a federal judge to halt the removal from the US of alleged Venezuelan gang members under a dormant 18th-century wartime statute. President Trump subsequently called for the judge’s impeachment, initiating a riposte from the chief justice of the US supreme court.
It is hard to see things getting quite so heated over 24-hour driving disqualifications in Kildare District Court. But given the direction of travel in public and political discourse, it is not unimaginable if the right issue came along at the right time when the wrong people were in power.
