Privy Council dismisses challenge against demerit-point system

AN appeal of the new traffic laws’ demerits point system has been dismissed by the Privy Council.

In a ruling on June 25, Lords Reed, Sales, Hamblen, Leggatt and Lady Rose dismissed Zachary De Silva’s appeal.

They held the Court of Appeal rightly criticised the lack of clarity in the legislation. They also left De Silva’s appeal against his disqualification of his driving permit in the traffic-violation matter to the Court of Appeal.

The London-based court, TT’s final appellate court, had to determine if the local courts got it wrong in determining that the Court of Appeal, and not the High Court, was the proper forum to appeal a decision to disqualify a driver from holding a driving permit after accumulating ten demerit points.

De Silva mounted the challenge to the appeal process of the Motor Vehicles and Road Traffic Act when he racked up ten demerit points for various traffic violations, including driving with a cellphone, breaching a traffic sign and because his passenger, on one occasion, was not wearing a seatbelt.

He paid the penalties and thought as a result, he would not get demerit points. However, he was told he had accumulated ten demerit points, and of the intention to suspend his permit, and was invited to respond. He did so within the statutory period under the legislation.

De Silva was then told his permit had been suspended. He sought to appeal this decision at the High Court.

A fixed-penalty traffic ticket can be challenged in the magistrates court. However, his attorneys had argued that the MVRT Act allowed for an appeal against such a decision to a “court of competent jurisdiction.”

In February 2021, Justice Frank Seepersad dismissed De Silva’s challenge. The Court of Appeal upheld this decision in August 2021.

Both courts held that those sections of the act on the issue of an “appeal” were poorly drafted, as they did not precisely state the forum for such appeals to be made.

Seepersad had held that an appeal of a decision by the Transport Commissioner to suspend a driver’s licence must be done at the Appeal Court and not the High Court. He also criticised the poor drafting of the legislation.

In a unanimous decision, the Court of Appeal agreed with Seepersad.

The Court of Appeal, comprising Justices of Appeal Alice Yorke-Soo Hon, Peter Rajkumar and Ronnie Boodoosingh, held that it was illogical to infer from the structure of the legislation that one rationale may have been to ease the workload of the magistrates courts by removing from them the administrative aspects arising from a decision that the requisite number of demerit points has been obtained.

At the Privy Council, De Silva’s attorney Christophe Rodriguez argued that the new road traffic regime was different and it would be unusual for an appellate court to hear evidence in the absence of a trial process. He said this was different from contesting a traffic ticket in the magistrates court, which can then be appealed to the Court of Appeal.

In response to the appeal, UK attorney Rowan Pennington-Benton, who represents the Transport Commissioner and the Licensing Authority, said the legislation did not allow for a transfer to the High Court for a full factual inquiry, since a “special tribunal” was given the job of deciding whether a driver with ten demerit points should be disqualified.

He said the act, as it stood before, had no appellate role for the High Court.

“The role of the High Court was for indictable matters relating to matters under the Motor Vehicles and Road Traffic Act.”

He said if the new regime, enacted in 2017, intended to create a new jurisdiction for the High Court, then Parliament would have expressly said so.

“Parliament probably didn't intend to create a new role for the court. Before, the Court of Appeal had the appellate role.

“Appeals against disqualification are to be dealt with in the same way an appeal against a conviction…There is only one place that goes. It still leads back to the Court of Appeal."

In their ruling, the Law Lords said they agreed with the courts below that the Court of Appeal was the correct forum for De Silva’s appeal.

“The reference to ‘a court of competent jurisdiction’ is, in the Board’s opinion, apt to refer back to the existing regime in so far as appeals are concerned.” They said the power to disqualify, prior to the amendment to the MVRTA was done by the magistrates’ court and appeals from there went to the Appeal Court.

“The Board agrees with the reasoning of Boodoosingh JA that if the legislature had intended to make such a fundamental change to the appellate regime for driving disqualification, it would have made this much clearer.

“Further, section 88M(9) provides expressly that an appeal to the court of competent jurisdiction is final. That also indicates that the Court of Appeal is the appropriate court.

“The Board considers that the finality of the decision of the court in an appeal under section 88M(9) is an important indication that it is the Court of Appeal and not the High Court on which this jurisdiction is conferred.”

They also pointed out that appeals from other disqualification powers for traffic offences were brought in the Appeal Court, not the High Court.

“If a person is convicted on indictment of causing death by dangerous driving under section 71 or by the summary court of dangerous driving under section 71A, the appeal will go to the Court of Appeal.

“It would be undesirable for there to be two different appellate routes since this may lead to inconsistencies in the application of the factors to be taken into account when considering whether the disqualification should stand or not.

“There is an advantage in a single court acquiring expertise in handling such appeals and in giving authoritative guidance to the Licensing Authority and to magistrates exercising the power to disqualify as to the factors that are or are not relevant in making that decision.”

The Law Lords also acknowledged that while the High Court was more accustomed to hearing evidence than the Court of Appeal, the appellate court had the power to consider whatever evidence was placed before the Licensing Authority.

They further added, “Although the question raised by the appeal is one of statutory construction, it is

also a question concerning the procedural allocation of responsibilities within the TT court system.

“The Board will be slow to interfere with the Court of Appeal’s assessment of whether this is a jurisdiction which belongs in its own caseload rather than one which it considers the statute is likely to have allocated to the lower court.”

De Silva was also represented by Devvon Corey Williams and Kimaada Ottley.