Judge John Neilan has made a deliberate bad order to provoke a judicial review into what he claims are inconsistencies in drink-driving legislation.
His recent decision to restore the driver’s licence of two applicants whose period of disqualification is two years exactly, will lead to the High Court investigating legislation which he believes allows those who commit a lesser offence receive a greater penalty.
Judge Neilan has been scathing in his criticism of the law which he believes to be in contravention of European and human rights law and also of inconsistencies in judges’ application of the law.
A conviction for drink driving attracts a mandatory disqualification, the length of which increases depending on the quantity of alcohol in the breath, urine or blood of the individual.
Up to 44mg/100ml breath attracts a one-year disqualification, up to 66mg earns a two-year disqualification and above that a driver will lose his licence for three years.
Legislation allows those who have been disqualified for more than two years to apply to have their licence restored when they have served two-thirds of the disqualification but this facility is not available to those who get a straight two-year ban.
“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,” he said in February.
At that time he described his colleagues on the bench who add a day or week to the two year disqualification as bringing the law into disrepute because he contends that “they are in effect legislating or acquiescing in defeating the legislation”.
This suggestion has been strongly contested by his colleague on the bench, Judge Gerard Haughton who responded by pointing out that the principal of mitigation where the defendant pleads guilty at the first opportunity “is well established in case law and in statute”.
However, he added “I resent and reject the proposition that in adopting this course that myself or my colleagues are bringing the law into disrepute. We take a serious view of our obligations and apply the law as we see fit and appropriate”.
The fact that “the vast majority” of judges adopt this view on the basis of the “very considerable time wasted in raising technical and other points” in drink-driving cases when they are contested, “tells its own tale,” he said.
Research done at Judge Neilan’s request by Ms Patricia Cronin who made the restoration applications on behalf of her clients indicated that in eight out of ten districts she canvassed, judges do add an extra day to the two-year ban.
Judge Neilan described as “passing the buck” a response to Mullingar Gardaí’s question on his behalf to the DPP’s office that because the application is not a criminal one and the prosecution has ended, the Director does not have a role.