Legal loophole gets single day ban for driver who passed checkpoint without stopping

A solicitor who availed of a loophole in road traffic laws with a view to having a novice driver client banned from driving for one day, rather than six months, after she drove through a Garda checkpoint without stopping has said he was doing his job.

Emma Farjadi Fard “did not deserve to be put off the road for six months”, her solicitor, Tim Kennelly, said.

“Our job as lawyers is to circumvent and find loopholes in the law. Otherwise, what is our function?” he said. “The legislation is there, I did not create it. It was created by greater minds than mine.”

Mr Kennelly earlier this month represented Ms Farjadi Fard (21), with an address at Millview, Ballitore, when she appeared before Naas District Court.

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The Kildare Nationalist reported she was in court charged with dangerous driving under section 53 of the Road Traffic Act 1961 at Walterstown, Nurney, Co Kildare, on July 18th, 2021, when she allegedly drove through a Garda checkpoint without stopping as a 19-year-old “learner” driver.

Judge Desmond Zaidan had previously adjourned the case for the purposes of a probation report, indicating if that report was positive, he might consider reducing the charge to dangerous driving under section 52 of the 1961 Act.

When the case returned to court on November 2nd, Mr Kennelly asked visiting District Court Judge Philip O’Leary, on foot of a good probation report, to reduce the charge to careless driving.

Mr Kennelly said his client had a very good job in the Cliff House Hotel in Waterford but, because she was now a “novice” driver, the careless driving conviction would, under section 37 of the Road 1961 Act, mean a mandatory five penalty points on her licence. Because she already had two penalty points, the additional five would mean she would be disqualified for six months.

He asked the judge to apply section 2.8 of the Road Traffic Act 2002 in this case. Section 2.8 provides, where a person admits or is convicted of a penalty points offence, and an ancillary disqualification order is made in respect of that offence, those penalty points shall not be endorsed on the person’s licence. Section 2.8 does not specify the period of disqualification.

On foot of the submissions, the judge agreed to make an ancillary one-day disqualification order, from November 6th to November 7th.

Speaking to The Irish Times on Tuesday, Mr Kennelly said he had invoked section 2.8 to secure short disqualification orders for drivers in about 10 cases in a number of District Courts.

In Ms Farjadi Fard’s case, he said the judge applied his “wisdom and experience” when exercising his discretion to make the section 2.8 order.

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If a judge is of the view, having seen how well his client did in the probation report, she should be given a chance to do well and not lose her licence, it would be “draconian and harsh” not to give her that chance, he said.

Judges are not using the provision “willy nilly”, he said. “They listen to the human stories and the impact of being out of work for six months and only make the orders if they believe there is a good reason for them.”

Meanwhile, there have been calls for the Government to close a loophole in the Road Traffic Acts that means some drivers have avoided penalty points in return for being disqualified for periods as short as one day.

Opposition voices highlighted the impact of such loopholes on the deterrence value of penalty points and said the situation made a “mockery” of their role in improving road safety.

Sinn Féin’s transport spokesman, Martin Kenny, said: “We have to be serious about our road safety laws… we need to ensure that this particular loophole is closed off.”

Social Democrats TD Catherine Murphy said: “It’s an obvious gap that needs to be closed. The whole point of penalty points is to make roads safer – gaps like this make a mockery of that intention.”

A spokesman for the Department of Transport said: “The department has been made aware of this matter and is considering whether it has any potential legislative and/or road safety implications.”