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.
