Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

Er­rant mo­torists will have to wait a while to learn the ap­pro­pri­ate fo­rum to hear and de­ter­mine chal­lenges against the sus­pen­sion of their dri­ver’s per­mits due to the ac­cu­mu­la­tion of de­mer­it points.

Lords Robert Reed, Philip Sales, Nicholas Ham­blen, George Leg­gatt, and La­dy Vivien Rose of the Unit­ed King­dom-based Privy Coun­cil re­served their judg­ment on the is­sue af­ter hear­ing sub­mis­sions from Arou­ca res­i­dent Zachary Da Sil­va and the Li­cens­ing Au­thor­i­ty at a hear­ing, yes­ter­day morn­ing.

In ear­ly 2021, Da Sil­va filed a law­suit in the High Court when his dri­ver’s per­mit was sus­pend­ed for six months af­ter he re­ceived three traf­fic tick­ets in the space of five months.

High Court Judge Frank Seep­er­sad re­fused to hear the case as he felt the Court of Ap­peal was the more suit­able fo­rum for such a chal­lenge. The de­ci­sion was based on his in­ter­pre­ta­tion of Sec­tion 88 (m)(9) of the Mo­tor Ve­hi­cle and Road Traf­fic Amend­ment Act, which mere­ly states that per­sons can ap­peal to a “court of com­pe­tent ju­ris­dic­tion” when the Trans­port Com­mis­sion­er sus­pends their per­mit for de­mer­it point ac­cu­mu­la­tion af­ter con­sul­ta­tion with them.

Sev­er­al months lat­er, Jus­tice Seep­er­sad’s rul­ing was up­held by Ap­pel­late Judges Al­ice Yorke-Soo Hon, Pe­ter Ra­jku­mar, and Ron­nie Boodoos­ingh, lead­ing to the fi­nal ap­peal be­fore the Privy Coun­cil.

Pre­sent­ing sub­mis­sions, yes­ter­day, Da Sil­va’s lawyer Christophe Ro­driguez ad­mit­ted the Court of Ap­peal is em­pow­ered to hear chal­lenges of mag­is­trates’ de­ci­sions to sus­pend per­mits based on con­vic­tions for cer­tain dri­ving of­fences.

How­ev­er, he claimed the High Court judges should hear chal­lenges over de­ci­sions tak­en by the com­mis­sion­er on be­half of the au­thor­i­ty as they would be able to con­sid­er fresh ev­i­dence rel­e­vant to the case.

“It would be un­usu­al for the Court of Ap­peal to hear new ev­i­dence,” he said.

Ro­driguez point­ed out that in pass­ing the amend­ment in 2017, Par­lia­ment sought to re­duce the back­log of traf­fic of­fences in the Mag­is­trates’ Courts by “de­crim­i­nal­is­ing” traf­fic of­fences.

“If part of the pol­i­cy mo­tive of Par­lia­ment was to take away the back­log, why would they place some of that back­log on the Court of Ap­peal?” he asked.

“You would have the Court of Ap­peal deal­ing with very triv­ial mat­ters. That is not a good place for the Court of Ap­peal to be in.”

Asked by the Law Lords to iden­ti­fy in­stances where High Court Judges were ex­clu­sive­ly em­pow­ered to hear chal­lenges over reg­u­la­to­ry penal­ties, Ro­driguez point­ed to the Land Sur­vey­ors Act, the Den­tal Pro­fes­sion Act and the Med­ical Board Act.

Re­spond­ing to the sub­mis­sions, British at­tor­ney Rowan Pen­ning­ton-Ben­ton, who led the le­gal team for the au­thor­i­ty, claimed the con­cur­rent de­ci­sions of the lo­cal courts could not be fault­ed. He not­ed that the amend­ment did not ex­plic­it­ly state which court should hear such chal­lenges.

“The court of com­pe­tent ju­ris­dic­tion to hear an ap­peal over a se­ri­ous penal­ty can on­ly be the Court of Ap­peal,” Pen­ning­ton-Ben­ton said.

He sug­gest­ed that as the Court of Ap­peal could hear chal­lenges to sus­pen­sions or­dered by mag­is­trates it should al­so hear cas­es over sim­i­lar de­ci­sions tak­en by the au­thor­i­ty.

“Even though one is crim­i­nal and one is not, both arise out of the same leg­is­la­tion,” he said.

He not­ed that dri­vers would not be able to chal­lenge the de­mer­it points at­trib­uted to them at a tri­al as they would have ac­cept­ed the points by pay­ing the tick­ets or the points would be ap­plied if they un­suc­cess­ful­ly con­test­ed them be­fore a mag­is­trate.

“It is not a tri­al, it is mit­i­ga­tion,” Pen­ning­ton-Ben­ton said.

Da Sil­va re­ceived his first tick­et af­ter he was caught us­ing his cell phone while dri­ving in May 2020. Two months lat­er, he re­ceived an­oth­er tick­et for breach­ing a traf­fic sign. The last tick­et was is­sued in Sep­tem­ber 2020 for hav­ing a front pas­sen­ger with­out a seat belt.

In his court fil­ings, Da Sil­va said he be­lieved that he would not re­ceive de­mer­it points if he paid the fines.

The au­thor­i­ty al­lowed Da Sil­va to present a mit­i­ga­tion plea and then still de­cid­ed to sus­pend his per­mit for hav­ing be­tween 10 and 14 points with­in three years.

Un­der the leg­is­la­tion, sus­pen­sions vary be­tween six months and two years de­pend­ing on the num­ber of points ac­cu­mu­lat­ed dur­ing the pe­ri­od.

New­ly li­censed dri­vers, who ac­cu­mu­late sev­en or more points with­in a year of be­ing is­sued a per­mit, are dis­qual­i­fied from hold­ing a per­mit for a year.

Even if Da Sil­va is un­suc­cess­ful in the ap­peal, he will not be with­out re­course as he can still chal­lenge the sus­pen­sion be­fore the court even­tu­al­ly de­cides by the Privy Coun­cil.

Da Sil­va was al­so rep­re­sent­ed by Devvon Williams and Ki­maa­da Ot­t­ley.