Record No: 2023/1649 SS
IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857, AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961
BETWEEN
[2024] IEHC 741
NATIONAL TRANSPORT AUTHORITY
Appellant
Respondent Judgment of Ms. Justice Hyland delivered on 25 September 2024
1. This is a case stated by way of appeal under section 2 of the Summary Jurisdiction Act 1857 (the "1857 Act"). It hinges on a very net point i.e., whether a District Court judge was correct in dismissing a prosecution brought by the National Transport Authority (the "NTA") against Christopher Anderson. The core of the dispute between the parties is whether an authorised officer may take the steps that he did on 20 August 2022 - in short, a covert test purchase of taxi services, despite there being no express statutory authorisation for same.
2. The NTA brought two charges alleging offences contrary to s.22(2)(a)(i) and s.22(2)(b) of the Taxi Regulation Act 2013, as amended by the Public Transport Act 2016 (the "2013 Act"). Those provisions prohibit a person driving or using a mechanically propelled vehicle in a public place for the
carriage of persons for hire or reward unless the vehicle is a licensed small public service vehicle ("SPSV") and (b) the person holds a licence to drive a SPSV.
3. On 22 May 2023 the District Judge dismissed the two charges as he found that as a matter of law the authorised person was not, in the light of the wording of s.40(3) of the 2013 Act, empowered to engage in activities targeting unlicensed operators.
4. The NTA appealed by way of case stated under s.2 of the 1857 Act. In a document entitled "Appeal by way of Case Stated" of 6 November 2023, having carefully set out the background and the evidence heard before him in some detail, the learned District Judge stated the following case: -
"(1) On the facts so found, was I correct in law in dismissing the case?"
5. For the reasons set out in this decision, I am satisfied that the judge was correct in law in dismissing the case. Accordingly, I answer the case stated in the following terms: -
"The District Judge was correct in law in dismissing the case".
6. There exists only a limited form of appeal available to an appellant against the dismissal of a charge in the District Court. An appellant has no right to appeal to the Circuit Court but rather is confined to the present form of an appeal i.e., a case stated by way of appeal. Section 2 of the 1857 Act provides as follows:
-
"After the hearing and determination by a justice or justices...of any information or complaint which he or they have power to determine in
a summary way...either party to the proceeding...may, if dissatisfied with the said determination as being erroneous in point of law, apply in writing...to the said justice or justices to state and sign a case setting forth the facts and the grounds of such determination, for the opinion thereon of the [High Court]".
7. Section 6 of the 1857 Act outlines the jurisdiction of the High Court and identified that the High Court shall hear and determine the question or questions of law and shall reverse, affirm or amend the determination in respect of which the case has been stated. The Court may also remit the matter to the justices with the opinion of the Court or make such other order, including costs, as the Court may seem fit.
8. The jurisdiction is one which, to the extent it allows for an appeal against an acquittal, is unusual. Various courts have pronounced upon the way in which the High Court must exercise this jurisdiction. In Fitzgerald v DPP [2003] 3 IR 247, Hardiman J observed: -
"The status of near inviolability classically afforded to an acquittal emphasises the need to construe the permitted scope of an attack on such acquittal strictly. I have no hesitation in finding that the scope of such challenge is strictly limited to a question of law".
9. In DPP v Nangle [1984] ILRM 171, Finlay P, observed that the case stated procedure was exclusively confined to correcting errors of law by an inferior court. In Proes v The Revenue Commissioners [1998] 4 IR 174, Costello P identified the principles applicable when deciding whether a particular opinion was correct in law in a case stated procedure. The principles may be summarised as follows: (i) findings of primary fact by the trial judge should
not be disturbed unless there is no evidence to support them, (ii) inferences from primary facts are mixed questions of fact and law, (iii) if the trial judge adopted a wrong view of the law, his conclusions should be set aside, (iv) if the trial judge's conclusions are not based on a mistaken view of the law, they should only be set aside if he drew inferences which no reasonable judge could draw.
10. In DPP (Lavelle) v McCrea [2010] IESC 60, Hardiman J observed that, in the context of an appeal by way of case stated, it was sufficient for the court to conclude that it was open to the District Judge to dismiss the charge on the facts. Accordingly, there is no question of the High Court revisiting any findings or inferences of fact made or drawn by a District Judge provided those findings or inferences were open to them.
11. Turning now to the 2013 Act under which the prosecution was brought, the Act provides at Part 2 for the licensing of an SPSV. At Part 3 it provides for the regulation of the SPSV industry. Section 22 provides for the criminalisation of persons who drive a vehicle in a public place for the carriage of persons for hire or reward unless the vehicle is SPSV licensed, and the person holds a licence to drive an SPSV. A person who contravenes these provisions commits an offence and is liable on summary conviction to a class A fine.
12. At Part 4 it deals with mandatory disqualifications. Part 5 sets out a demerit scheme in the case of convictions. Part 6 is concerned with enforcement and is of particular relevance in the context of this case stated. Section 40 is important. Section 40(1) provides as follows: -
"(1) The authority may appoint in writing such and so many persons or classes or of persons (including persons who are employees of a person who has entered into a service agreement) as it may determine to perform any or all of the functions conferred on an authorised person under the section as may be specified in the appointment.
(2) A person appointed as an authorised officer under sub. (1) shall, on his or her appointment, be furnished by the authority with a warrant of his or her appointment and when exercising a power conferred on an authorised person under this part shall, if requested by any person affected, produce the warrant to that person for inspection."
13. Section 40(3) is extensive and gives specific powers to authorised persons.
The first part is in the following terms: -
"(3) For the purposes of ensuring that the holders of licences are each complying with this Act, or a code of practice or the requirement that small public service vehicles or vehicles being used or intended to be used for hire or reward are in a roadworthy condition, an authorised person may ..."
14. Thereafter, there are list of activities that an authorised person may carry out, including: enter and search premises, inspect and examine vehicles or documents, search SPSVs or vehicles purporting to be such, carry out tests upon a vehicle, search a parked SPSV or a vehicle which the authorised person suspects as being used as such, secure for future inspection any premises or place where it is believed that SPSVs are kept, require the production of licence records or documents, inspect and take extracts from licences, records or documents, retain licence records or documents, take photos, require a
person to bring the vehicle to a specified location and require the name and address and date of birth of people in certain circumstances.
15. Section 41 contains a prohibition on the use of unroadworthy or defective SPSVs and provides for their seizure and detention by authorised officers. Section 42 provides for the provision of a search warrant to a named authorised person. Section 43 prohibits the obstruction of an authorised officer. Section 44 provides for CCTV at taxi ranks, s.46 provides that proceedings may be brought and prosecuted summarily by licensing authority,
s.47 deals with the revocation of a licence by court consequent upon conviction, s.48 deals with fixed payment notices and s.49 deals with the payment of fixed amount on the service of a summons. In short, Part 6 addresses in a comprehensive fashion the way the Act shall be enforced.
16. As will be seen from the detailed recitation of the facts in the case stated by the District Judge, identified below, the core of the dispute between the parties is whether an authorised officer may take the steps that he did on 20 August 2022 - in short, a covert test purchase of taxi services, despite there being no express statutory authorisation for same. The answer to that question may turn on the capacity in which the actions were taken i.e., either qua authorised officer or alternatively as a person who was not exercising any special powers as an authorised officer conferred by the 2013 Act.
17. On behalf of the NTA, it was contended that, given that a member of the public could give evidence in relation to the hiring of a vehicle at an identified time and place, there was no reason why an authorised officer could not do so, even though those actions lay outside the scope of the actions permitted by
s.40(3). I should emphasise at this point that neither party contended that the covert test purchase was either explicitly or implicitly covered by the activities specified at s.40(3).
Evidence before the District Judge
18. As this is a case stated, I am not making any findings of fact but rather considering the matter on the facts found by the learned District Judge. In my view, having considered the appeal by way of case stated formulated by the District Judge, it is clear he took a certain view of the capacity in which Mr. Carey was acting. At paragraph 7 it is recited that the first witness was Anthony Carey, who indicated he was an authorised person within the meaning of s.40(1) of the Act and that he had received information regarding the provision of SPSV services by a person who is not in possession of an SPSV licence or an SPSV driver licence. Mr. Carey stated he conducted a joint NTA/garda compliance operation in the form of a covert test purchase to detect these offences. At paragraph 8 it is recalled that Mr. Carey stated that on 20 August 2022 he was outside a licenced premises at Mount Elliott, New Ross, County Wexford, being a public place, and at 20.38, acting on information he had received, he telephoned an individual on a phone number that he read into evidence. Mr. Carey requested a cab to the Brandon House Hotel. Mr Anderson answered the phone and said he would be in a Ford Mondeo. Mr. Carey recites the arrival of the Ford Mondeo and gives evidence of entering the vehicle and asking how much the fare would be. He refers to the journey and the arrival at the carpark of Brandon House Hotel and the payment he made to Mr Anderson.
19. At paragraph 10 the District Judge refers to Mr. Carey then producing his warrant of appointment and identity card and informing Mr. Anderson he was a compliance officer with the National Transport Authority. The District Judge refers to Mr. Carey being joined by arrangement by Garda Lee Donnelly and Sergeant Brian Murray attached to New Ross Garda Station. He refers to Mr. Carey securing for evidence purposes the €20 he had paid to Mr. Anderson and returning the €12 Mr. Anderson had given him. Mr. Carey indicated that he formed the view that Mr Anderson was operating a vehicle in contravention of s.22(2) of the 2013 Act. Mr. Carey gave evidence that he then cautioned Mr. Anderson as follows: - "You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence". The District Judge refers to Mr. Carey asking Mr Anderson his name, date of birth and address, and records the provision of those details by Mr Anderson. Mr. Carey is recorded as stating that, while this was happening, he took a note of the events that had just occurred, the questions he had asked and the answers that Mr. Anderson gave. He entered them into his official notebook, and asked Mr. Anderson to sign his notebook, which he duly did.
20. The Judge recites the cross-examination and the fact that it was put to Mr.
Carey that he was carrying out a test purchase or setting a trap which was not permitted or authorised under s.40. Mr. Carey took issue with the use of the phrase "setting of a trap". He indicated he was involved in a covert test purchase and there was no other way to establish whether a person was operating a vehicle for hire or reward. He accepted the legislation did not specifically set out the power to make a test purchase. In re-examination Mr.
Carey confirmed that he did not invoke any powers in his encounter with the defendant.
Conclusions of the District Judge
21. The learned District Judge then summarised the legal submissions. One of the arguments made by the NTA was that powers were provided to authorised persons to do things that ordinary people could not do, but such powers were not the entire remit of what an authorised person could do. Counsel submitted that all that Mr Carey had done was simply play out the part of a passenger and that this did not require a specific power. At paragraph 32 the learned District Judge indicated that he was concerned about the point concerning the wording of s.40(3) and the fact that it did not provide for activities targeting unlicensed activity.
22. At paragraph 35 he made the following finding:
"I dismiss the two charges as I found that as a matter of law the authorised person was not, in the light of the wording of s.40(3), empowered to engage in activities targeting unlicensing operators".
23. It is true that the District Court Judge did not make explicit findings of fact.
However, in my view, one can readily infer from the Appeal by way of Case Stated as set out above that the Judge made findings of fact that Mr. Carey was acting qua authorised person when making the covert test purchase. As noted above, counsel for the NTA sought to persuade the District Judge that Mr. Carey was acting in the same way as a member of the public would do and not as an authorised officer and that it was open to him to do so. In my view, the conclusion at paragraph 35 identified above makes it clear that the trial judge
considered Mr. Carey was acting as an authorised officer when he made the covert purchase. Having so characterised his actions, he concluded that, having regard to the wording of s. 40(3), the authorised person was not empowered to engage in activities targeting unlicensed operators. I cannot find any flaw in the finding of facts in this respect by the District Judge such that would entitle me to interfere with same.
24. They were certainly not findings that were not open to him on the evidence.
Indeed, although it is not for me to evaluate the evidence, it seems to me that there were at least ten different ways in which the authorised officer acted in a way that would not have been open to a member of the public, being: the receipt of information as to Mr. Anderson's actions in hiring out his vehicle, the carrying out of a joint NTA/ Garda compliance operation in the form of a covert test purchase, the receipt of Mr. Anderson's phone number based on information provided to him, the provision of his warrant of appointment and his identity card to Mr. Anderson, his actions in informing Mr. Anderson he was a compliance officer, the pre-planned arrival of Garda Lee Donnelly and Sergeant Brian Murray attached to New Ross Garda Station, the repayment of the €12 given to him by Mr. Anderson, the forming of the view that an activity contrary to s. 22 had occurred, the caution that he gave to Mr. Anderson, the fact that he asked Mr. Anderson for his name, date of birth and address and took a note of the answers in his official notebook, and Mr. Carey's request that Mr. Anderson sign Mr. Carey's official notebook.
25. None of those are actions that would have been open to, or could have been carried out by, a member of the public. In the circumstances, his conclusions
on the facts were clearly open to him, and there is no basis to interfere with same.
26. That being the case, the only question that I must asked myself is whether the District Judge was incorrect in law in concluding that the authorised officer was not empowered to engage in activities targeting unlicenced operators in the light of the wording of s. 40.3. As noted above, the appellant accepts that
s. 40(3) does not permit an authorised person to engage in activities targeting unlicenced operators such as that at issue in the present case. The NTA tentatively made the argument that an authorised officer acting as such is
entitled to conduct activities that are not identified in the 2013 Act although the bulk of its argument was directed towards the issue addressed above, i.e. that on the facts Mr. Carey was not acting explicitly as an authorised officer. But the wording of s.40(1), set out above, makes it impossible in my view to conclude that an authorised officer acting as such may carry out activities not provided for in the Act.
27. It will be recalled that s.40(1) provides that the authority may appoint persons to perform "any or all of the functions conferred on an authorised person under this Section as may be specified in the appointment". The appointment produced in evidence is a very wide one, simply authorising Mr. Carey to "perform all of the powers and/or functions exercised by authorised persons under the Act". Section 40(1) specifically refers to the functions conferred under "this Section" i.e. s. 40. It is true that there are other provisions given to authorised persons under s.27. Presumably these are authorised under the appointment. In any case, Mr. Carey's activities were not functions under s.27. Accordingly, it seems to me that the functions that an authorised person may
carry out are limited to those identified under s.40 and/or s.27, as specified in the appointment. There is no statutory provision for functions not conferred under s.40 and specified in the appointment. In those circumstances I am quite satisfied that the conclusion of the District Judge cannot be said to be erroneous on the basis that he failed to conclude that the activities were lawful despite not being captured by the Act, in particular s.40 and/or the appointment.
28. In summary, no error was made in law by the District Judge either in his interpretation of s.40(3) or in his factual conclusion that Mr. Carey was acting as an authorised officer.
29. In addition to the core arguments made by the NTA, addressed above, various additional arguments were made including one to the effect that an interpretation such as that adopted by the trial judge leaves a lacuna in the 2013 Act and undermines the aims of the Act as it prevents certain enforcement steps being taken by the NTA. I can see the force in that submission from a practical point of view, but it cannot be the basis for a finding that the trial judge erred in law where the Act did not provide for the carrying of the desired enforcement measures by the NTA. If there is a lacuna in the 2013 Act, then it is for the legislature to remedy that by amending that Act.
30. The NTA also said that s.40(3) was not a prohibiting provision but an enabling provision. That may be the case, but it does not alter the fact that there is no statutory provision for a person exercising the powers of an authorised officer to act other than in accordance with the 2013 Act.
31. The appellant also relied upon the argument that s.22 creates an offence and therefore the appellant must have power to investigate the possible commission of the evidence. It seems to me that argument fails to consider the doctrine of ultra vires and the obligation of a body created by statute to operate squarely within the four walls of that statute. Moreover, the argument is perhaps overstated. The legislature has given the authorised officers considerable powers under s.40(3) to obtain evidence for the purposes of a prosecution under s.22, including in respect of vehicles purporting to be SPSV. For example, a person may search, inspect and examine an SPSV or vehicle purporting to be such. Equally, when accompanied by a member of An Garda Síochána, an authorised officer may stop a SPSV or a vehicle purporting to be such. Evidence gleaned from the exercise of these powers would presumably be important in the context of a prosecution under s. 22 in respect of a vehicle that is unlicensed and/or a person that is unlicensed. Where the legislature has specified some powers, but has not specified others, the mere fact that it would be useful to have such powers to prosecute certain offences cannot be used to trump the obligation for a statutory body to act intra vires.
32. Finally, heavy reliance was placed by counsel for the NTA on case law in relation to the exercise of Garda powers, in particular the decision in HPRA v Rossi [2019] IEHC 723. That reliance is somewhat misplaced since, although the subject matter was superficially similar - covert test purchases and evidence obtained in that regard – the statutory context is entirely different and therefore the case is only of limited utility. Rossi was a consultative case stated pursuant to s.52(1) of the Courts (Supplemental Provisions) Act 1961 in
respect of a prosecution by the Health Products Regulatory Authority (the "HRPA"), HPRA is established under the Irish Medicines Board Act, 1995 (the "1995 Act") as amended. That Act makes provision for the appointment of authorised officers upon whom certain powers are conferred, including powers of entry, search to require information and assistance.
33. The defendant was a nurse who conducted business as a beautician. The HRPA alleged that she provided botox treatments as part of her service without having necessary prescriptions from doctors. On 19th February 2015 authorised officers employed by the authorities seized a quantity of dysport, commonly known as botox, a prescription only drug, during a search of the clinic. The authorised officers took a cautioned statement from the defendant when they were on the business premises. Subsequently, an objection was made to that statement being introduced into evidence. The statement was not taken pursuant to any of the explicit powers of the HPRA to compel statements under the 1995 Act. The 1995 Act provided that where statements were taken on a mandatory basis pursuant to the statutory provision, it could not be introduced as evidence in any subsequent criminal prosecution. The defendant argued that the HPRA was a creature of statute and was obliged to act within its statutory powers and that the officers were not entitled to take the caution statement on a non-statutory basis where there was a statutory power to do so.
34. Had the statutory provisions been the same or similar to s.40 of the 2013 Act, that decision might have been very important in the resolution of the statutory provisions here. But no section equivalent to the terms of s. 40(1) or (3) is identified in the judgment, although certain provisions of the 1995 Act as
amended are identified, including certain powers of authorised officers. As may be seen from the analysis above, my conclusions on the powers of authorised officers in this case is based on the specific wording of s.40. Moreover, insofar as the issue of unspecified statutory powers is addressed in Rossi, it is done in relatively short order, since much of the decision is concerned with the administering of a caution and the voluntariness of the statement. At paragraph 38 McGrath J. observes that the powers of s.32(b)(3) (i.e. those powers that entitle an authorised office to compel the provision of information) are couched in non-mandatory terms and empower, but do not oblige, an authorised officer to obtain information in a particular manner or in the manner specified in s.32 b(3)(e) and states:
"In so far as it is suggested that questions may be raised only pursuant to an expressed power conferred by statute, I do not believe that this is supported by authority".
35. At paragraph 39 McGrath J. observed that:-
"I see nothing in the Act which prohibits an authorised officer from asking a question in circumstances where the failure to answer the question has no legal consequences. Nor do I interpret the Act in the manner which suggests that if information is to be elicited, it can only be done in one way."
36. In my view, both those comments relate to the interpretation of the 1995 Act by McGrath J. The reliance by the NTA on this case appears to be an effort to invoke a general principle that officers of a statutory body do not need statutory authorisation to act, irrespective of the wording of the authorising statute. The decision in Rossi simply cannot bear the weight of such an
interpretation, given the absence of any attempt by McGrath J. to formulate principles applicable beyond the wording of the 1995 Act. Indeed, any such conclusion would run the risk of falling foul of the obligation of a statutory body to act intra vires. Accordingly, I find this case of little assistance in the present case.
37. The NTA also relied upon DPP v Boyce [2009] 2 IR 124. This case raised the question as to whether it was lawful for a member of An Garda Síochána, when taking a sample of blood from a person in custody who voluntarily agrees to provide that sample for the purpose of forensic analysis, to do so without having invoked the provisions of s.2 of the Criminal Justice (Forensic Evidence) Act, 1990 (the "1990 Act"). That question was raised in a context whereby it was:-
(a) agreed that there was a common law power to take samples for forensic testing on the basis of a free and voluntary consent of a person detained;
(b) the statute gave statutory powers to take samples, and;
(c) the only question before the court was whether, properly construed, the 1990 Act left intact the common law power or whether the taking of samples could only be done following the enactment of the 1990 Act within and pursuant to the provisions that provided for same in the Act.
38. The Supreme Court concluded that there was nothing in the 1990 Act to suggest a construction that excluded the preservation of common law powers.
That case concerned a specific interpretation of a statute and again is of no particular assistance in the instant case.
39. Finally, reliance was placed on the case of DPP v Mills [2015] IECA 305, which dealt with the issue of the legality of undercover purchases by the Gardaí. A conviction was based on evidence following an undercover purchase where there was no statutory provision providing for the undercover purchase. The court concluded that the practice of test purchasing in relation to alcohol and tobacco products for the purpose of enforcing the law relating to the underage purchasing of such products was well established in the jurisdiction. The court noted the absence of a code of practice regulating the authorisation and conduct of the undercover test purchasing of elicit substances but was satisfied there was no breach of Article 6 of the Convention or Article 38 of the Constitution.
40. That case was not in any way concerned with the interpretation of the Act at issue here and the powers of the authorised officers therein. The mere fact that the subject matter was the same i.e. a covert operation, cannot render the decision in that case relevant. No question arises here as to whether covert purchasing activities are, in the abstract, compatible with Article 38 and/or Article 6 of the Convention. Rather, it is a specific challenge to the decision of the District Judge that such activities were not within the scope of the powers conferred on authorised officers under s.40. Accordingly, I do not find the invocation of this case helpful to the NTA's case.
41. For the reasons I set out I conclude that there was no error of law on the part of the District Court Judge in this regard. Accordingly, I answer the case stated as follows:
On the facts so found the District Judge was correct in law in dismissing the case.
42. I will list the case for submissions on costs on 15 October at 10.15 am. No written submissions are required in advance.