Judge Neilan has criticised his colleagues on the bench whom he says are defeating legislation and bringing the law into disrepute in the way they impose drink-driving disqualifications.
Those with a breath alcohol limit of between 44mg and 66mg earn an automatic two year minimum disqualification and have no right to apply to get their licence back before that time is up.
However, those above the 66mg limit are disqualified for at least three years but are entitled, in law, after a period to apply for restoration.
Adding one day to a two year driving ban allows drivers to apply to have their licence restored because their disqualification is greater than two years.
Judge John Neilan said his colleagues who engage in what is a widespread practice “are in effect legislating or acquiescing in defeating the legislation”. He added, “It is not for the courts to legislate”.
Speaking in response to a licence restoration application at Mullingar District Court he said there were inconsistencies in the law’s application, but he would prefer to see the High Court make a definitive decision as “It is not within my gift to legislate as a judge”.
He pointed out that there are European decisions which must be taken into consideration and added that, in individual cases,. he would certainly listen to considered submissions made by solicitors taking into account previous rulings of the High Court and the European Courts.
He said it would however, “be inappropriate to act on my own initiative. It could be argued that I’m legislating”.
As a rule he stated, “I am not prepared to add on a day. Why not add on a second or a minute? It makes a farce of the legislation to add on a day, to say to a defendant ‘you will be rewarded’”.
He added that there are further inconsistencies in the legislation which allow those who drink more to be treated more favourably if convicted of drink-driving.
He believes the legislation is saying to people that “if you’re up to 44mg you’re only a small bit drunk, go away. If you’re up to 66mg you’re a little bit more drunk, go away. But if you’re really out of your tree, come back because the legislation provides for it.”
“If you look at the gradient of readings, the general consensus must be that if you want relief under the legislation, get really, really drunk because if you’re in excess of 66mg you are guaranteed the right to apply for a restoration.”
However, he added that there is no guarantee that the licence will be restored.
He said it was a source of concern to him that the DPP had not sought to rebuke anybody engaged in this practice.
“Consistency is required,” added Judge Neilan, saying that everyone should be treated the same.
However, this is not the case if a judge in one part of the country disqualifies drunk drivers for two years and a day and a judge in Mullingar “point-blank refuses”.