Noel Dempsey (Meath West, Fianna Fail)

I move amendment No. 43:

In page 46, between lines 27 and 28, to insert the following:

T 4

PAYMENT DEPOSIT

50.—(1) This section applies to such offences under—

(a) the Road Traffic Acts 1961 to 2010,

(b) the Road Transport Act 1933 (including any Act construed as one with it),

(c) any regulation made under the European Communities Act 1972 providing for the carriage of merchandise by road or the carriage of passengers by road or the harmonisation of certain legislation relating to road transport, or

(d) any enactment or any instrument made under any enactment relating to the carriage of goods or passengers by road or to any vehicle or class of vehicles engaged in such carriage,

as may be prescribed.

(2) Where—

(a) a member of the Garda Síochána or a transport officer has reasonable grounds for believing that an offence to which this section applies is being or has been committed by a person, and

(b) the person does not give to the member or officer an address in the State at which the member or officer is satisfied that it is likely that it would be possible to find the person whenever necessary to do so in connection with any proceedings in respect of the alleged offence,

then the member or officer may, subject to subsection (3), serve personally on the person a notice (in this section referred to as a "payment deposit notice") in accordance with this section.

(3) Where a payment deposit notice is served on a person, the person shall—

(a) be informed by the member of the Garda Síochána or the transport officer serving the notice that it is likely that proceedings will be brought against the person in respect of the alleged offence, or

(b) if the offence is a fixed charge offence, be served with a fixed charge notice by the member or officer or informed by the member or officer that it is intended to serve the person with a fixed charge notice.

(4) A person on whom a payment deposit notice has been served under subsection (2) who—

(a) resides outside the State, shall give to the member or officer serving the notice the address outside the State at which he or she resides or which is his or her most usual place of abode, or

(b) in a case where the alleged offence involves the use of a mechanically propelled vehicle by the person in the course of his or her employment, has no habitual residence or place of abode outside the State, shall give to the member or officer serving the notice the address of his or her employer.

(5) A payment deposit notice shall be in the prescribed form.

(6) A payment deposit notice shall—

(a) require the person to pay an amount (in this section referred to as a "payment deposit") in accordance with the requirements of regulations under subsection (7), and

(b) contain details of those requirements.

(7) The Minister may by regulations provide in relation to a payment deposit for all or any of the following:

(a) the amount to be paid and different amounts may be prescribed in relation to different offences, calculated in respect of an offence as a proportion of the maximum fine that may be imposed in relation to the offence or, if the offence is a fixed charge offence, the amount of the fixed charge or a specified proportion of it;

(b) the timing, method or manner of payment or appropriate arrangements for making payment or matters relating thereto;

(c) whether the payment is to be accompanied by the notice and, if so, the details to be completed on the notice;

(d) options for payment (including the possibility of cash payment where in the circumstances and at the material time another means of payment is not possible) so as not to unduly delay a person, who is willing to pay the payment deposit, on his or her journey;

(e) the issue of a receipt in respect of payment;

(f) applications for refunds of payment deposits, including time limits for such applications;

(g) the refund of payment deposits, in whole or in part;

(h) directions which may be given by a member of the Garda Síochána or a transport officer in connection with matters relating to payment, the arrangements for making payments or the vehicle concerned or any load on it;

(i) any other requirements relating to payment of the payment deposit, as the Minister considers appropriate.

(8) A person who fails or refuses to—

(a) pay a payment deposit in accordance with the requirements of regulations under subsection (7), or

(b) give an address for the purposes of subsection (4),

is liable to have—

(i) a notice (in this section referred to as a "prohibition notice") served personally on him or her by a member of the Garda Síochána or a transport officer, as may be appropriate, or a nominated person at the request of the member or officer, prohibiting the movement of the vehicle concerned other than in accordance with the directions of any such member or officer, and

(ii) in accordance with regulations under subsection (10)—

(I) affixed to the vehicle an immobilisation device and a notice (referred to in this section as an "immobilisation notice") stating that the vehicle has been immobilised and shall not be moved, and

(II) the vehicle detained or impounded,

until payment or a satisfactory arrangement for payment is made in accordance with the directions of a member of the Garda Síochána or a transport officer or the address is given, as the case may be.

(9) (a) A prohibition notice and an immobilisation notice shall be in the prescribed form.

(b) The Minister may prescribe such persons or class of persons who may be nominated persons for the purposes of subsection (8).

(10) For the purposes of this section, the Minister may by regulations provide for all or any of the following:

(a) matters relating to the immobilisation, detention and impounding of a vehicle, including the release of the vehicle upon payment of the payment deposit concerned and any release and storage fee and, where the payment deposit remains unpaid, the disposal of the vehicle and any load on it and any fees relating thereto;

(b) satisfactory arrangements for payment, after any deduction for fees referred to in paragraph (a), where appropriate, of the amount obtained from disposal of the vehicle or its load, to the appropriate person;

(c) the recovery of the difference from the appropriate person, if the amount obtained after such disposal is less than the amount due for fees referred to in paragraph (a).

(11) A member of the Garda Síochána or a transport officer may, for the purposes of this section and any regulations made under it, give directions to the driver or person in charge of a vehicle served with a payment deposit notice or a prohibition notice (including directions requiring or permitting the movement of the vehicle to such place as the member or officer may direct).

(12) A person who fails to comply with a direction under this section commits an offence and is liable on summary conviction to a fine not exceeding €2,000.

(13) A person who, without the permission of a member of the Garda Síochána or a transport officer—

(a) drives or attempts to drive a vehicle—

(i) in respect of which a prohibition notice has been served, or

(ii) to which an immobilisation notice has been affixed or which has been immobilised, detained or impounded,

under subsection (8), or

(b) where the vehicle has been immobilised, detained or impounded under subsection (8), interferes with or removes any immobilisation device attached to the vehicle, or removes or attempts to remove the vehicle, commits an offence and is liable on summary conviction to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 3 months or to both.

(14) A member of the Garda Síochána may arrest without warrant a person who in the member's opinion is committing or has committed an offence under this section.

(15) Where a person who has paid a payment deposit and has also been served with a fixed charge notice relating to the same alleged offence agrees to make payment of the fixed charge specified in the fixed charge notice, any amount paid by the person in respect of the payment deposit shall be deemed to be payment or part payment, as the case may be, made in respect of the fixed charge. The remainder (if any) shall be returned to the person.

(16) Where, in proceedings for an offence to which this section applies, a person is convicted any payment deposit he or she has paid shall be applied towards payment of any fine imposed. The remainder (if any) shall be returned to the person in accordance with regulations.

(17) Where, in proceedings for an offence to which this section applies, the person is not convicted any payment deposit he or she has paid shall be returned to the person in accordance with regulations.

(18) Where proceedings are not brought or, if brought, are withdrawn or otherwise discontinued in respect of an offence to which this section applies, any payment deposit paid by the person concerned shall be returned to the person in accordance with regulations.

(19) A transport officer when exercising any power conferred on him or her under this section shall produce his or her warrant of appointment as such under section 15(1) (inserted by section 117 of the Dublin Transport Authority Act 2008) of the Road Transport Act 1986.

(20) In this section—

"fixed charge", "fixed charge notice" and "fixed charge offence" have the meanings given to them, respectively, in section 47;

"prescribed" means prescribed by regulations;

"regulations" means regulations made by the Minister;

"transport officer" means a person appointed under section 15(1) (inserted by section 117 of the Dublin Transport Authority Act 2008) of the Road Transport Act 1986 to be a transport officer.".

I indicated on Committee Stage that I was planning to introduce, subject to obtaining clarification on a small number of issues, the amendment I have now moved. I regret that time has not permitted the full briefing of Members on the substantive issues included in the amendment, but hopefully I can explain them sufficiently now. We sent a note inquiring whether Deputies needed any clarification on what we were trying to achieve here.

This amendment arises because of the number of foreign drivers from the Continent, who may be caught for a variety of offences we have outlined, who because of the current situation escape paying fines. We propose to put in place a payment deposit scheme that will deal with issues, focused on drivers' hours, tachographs, haulage operation offences and so on, in order to ensure there is a level playing field for everybody in the country.

Provision has already been made in the Road Traffic Bill to include offences under the Road Transport Act 1933 not tried on indictment and under any regulation made under the European Communities Act 1972 within the fixed charge system to assist in the enforcement of those offences by both the Garda Síochána and the RSA's transport officers.

The main purpose of the proposed enabling provision is to provide for the payment by the driver or registered owner of a vehicle, in respect of certain detected road transport offences - initially those offences relating to driver's hours, tachographs and operator licensing - at the roadside, and as a condition of permitting the vehicle to resume its journey, to a member of the Garda Síochána or an RSA transport officer of a sum of money - either a fixed charge, if appropriate to the offence, or a deposit against any fine that may be imposed by a court in a subsequent prosecution. It will also provide for the immobilisation or detention of the vehicle, where a fixed charge or deposit is not paid, until such time as payment is made. It is proposed that any payment deposit received will be treated as a fixed charge or as a deposit against a prosecution and will default to being a deposit against any fine imposed by the courts if no selection is made by the driver or registered owner within the prescribed period of time.

Where a prosecution is not taken, the State would return the payment deposit, but not the fixed charge that has been accepted by the driver or registered owner and the same applies where a prosecution is taken but the driver or registered owner is not convicted. Where a prosecution is taken and the amount of the fine imposed by the court on conviction is less than the payment deposit, the State would return the balance of the payment deposit. If the fine imposed by the court is greater than the payment deposit, the driver or registered owner will have to pay the balance. Any penalty points to be endorsed would be so endorsed on payment of the fixed charge or following a conviction in court.

The drafting of the proposal enabling provision has been the subject of extensive consultation with the key stakeholders, including the Garda Síochána, the Courts Service, the Department of Justice and Law Reform, the Road Safety Authority and the Office of the Attorney General. It had been intended to introduce the proposed amendment on Committee Stage, but due to the complexities involved in drafting the enabling provision, it was not possible to introduce it at that time.

See this speech in context