THE SUPREME COURT IN THE MATTER OF SECTION 18 OF THE COURTS OF JUSTICE ACT 1947 THE DIRECTOR OF PUBLIC PROSECUTIONS AND

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1 THE SUPREME COURT Record No. 195/2007 Macken J. Finnegan J. McKechnie J. IN THE MATTER OF SECTION 18 OF THE COURTS OF JUSTICE ACT 1947 BETWEEN THE DIRECTOR OF PUBLIC PROSECUTIONS PROSECUTOR AND GUNITA LEIPINA AND DZINTERS SUHANOVS ACCUSED Judgment of Mr Justice Finnegan delivered on the 2nd day of February 2011 This is a Consultative Case stated from the Circuit Court pursuant to section 16 of the Courts of Justice Act The accuseds, being the owner and user respectively of a mechanically propelled vehicle, were convicted before the District Court of offences contrary to section 56(1) and (3) of the Road Traffic Act 1961 as amended by section 23 of the Road Traffic Act 2002 and from that conviction appealed to the Circuit Court. The evidence available before the learned Circuit Court judge is set out in the Case Stated as follows:- (a) Sergeant Paul Kilcoyne, Carrick-on-Shannon Garda Station, gave evidence that on the 1st August 2005, he was on checkpoint duty at Tully, Carrick-on- Shannon, Co. Leitrim. At a.m. he stopped motor car registration number 95 D The driver gave his name as Dzinters Suhanovs with an address at 23 Shannon Grove, Carrick-on-Shannon, Co. Leitrim. Sergeant Kilcoyne noticed that the motor tax on the car expired in May 2003 and on questioning Mr Suhanovs about the tax on the car Mr Suhanovs stated that he was unable to tax the car because the Tax Office would not accept his certificate of insurance. Dzinters Suhanovs produced a certificate of insurance to Sergeant Kilcoyne. On inspection Sergeant Kilcoyne noticed that a Latvian insurance company had issued the certificate of insurance. The relevant details of the car that was being driven by Dzinters Suhanovs were included on the certificate as well as his current address in Carrick-on-Shannon, Co. Leitrim. Sergeant Kilcoyne informed Dzinters Suhanovs that he was of the opinion that the policy did not

2 cover him to drive an Irish registered car in Ireland. Sergeant Kilcoyne seized the car and took it to Carrick-on-Shannon Garda Station. Dzinters Suhanovs told Sergeant Kilcoyne that he originated from Latvia and had been residing in Ireland for the previous twelve months and was then employed by a company named Hanley Haulage. Sergeant Kilcoyne contacted the Latvian insurance company (BTA) mentioned on the certificate of insurance and the insurance company verified to him that the policy was a genuine policy issued by that company to Dzinters Suhanovs. Sergeant Kilcoyne subsequently sought the advice of the Motor Insurers Bureau of Ireland and was informed than in order for an insurance company to offer vehicle insurance in Ireland that the insurance company must first apply to the Financial Regulator and then become a member of the Motor Insurers Bureau of Ireland. The Motor Insurers Bureau of Ireland forwarded Sergeant Kilcoyne of a list of all insurance companies in their membership. BTA was not listed as a member of the Motor Insurers Bureau of Ireland. Sergeant Kilcoyne established that the registered owner of the car was Gunita Leipina of 23 Shannon Grove, Carrick-on-Shannon, Co. Leitrim. (b) Brenda Kearns, Claims Manager, with the Motor Insurers Bureau of Ireland gave evidence. She set out the legal basis for compulsory insurance cover and referred to sections 56, 58, 62 and 78 of the Road Traffic Act She stated that under section 62 of the 1961 Road Traffic Act the policy must be issued to a named person (referred to in the Act as the insured ) by a vehicle insurer i.e. the insurer. She said that an approved policy can be issued only by a vehicle insurer under section 58 of the Road Traffic Act 1961, if that company complies with section 78 of the Road Traffic Act 1961 as substituted by Statutory Instrument 372 of 1992, which provides that a person shall not carry on a vehicle insurance business in the State unless it is a member of the Motor Insurers Bureau of Ireland. The Latvian insurance company was not a member of the Motor Insurers Bureau of Ireland. Furthermore, by virtue of Statutory Instrument No. 178 of 1975 a policy of insurance in accordance with the national laws on compulsory insurance in any of the designated territories where vehicles are based is an approved policy. The question of where vehicles are based is dealt with by Statutory Instrument No. 322 of 1987, which provides that reference to the territory in which a vehicle is normally based is by reference to the territory of the State of which the vehicle bears a registration plate. In this case the vehicle in question is based in Ireland by virtue that it was registered in this State and thus the insurance certificate issued in Latvia is not an approved policy under section 62 of the Road Traffic Act She distinguished between the requirement to have an approved policy of insurance on an Irish registered car in the State and the system known as Green Card system and she referred to the Motor Insurers Bureau s role in that system and emphasised that the system related exclusively to visiting vehicles i.e. vehicles registered in the EEC and designated territories.

3 (c) Under cross-examination of Brenda Kearns, counsel for both accused referred exclusively to the provisions of Statutory Instrument 384 of 1992 and specifically section 8 thereof. Defence counsel argued that the provisions of section 8(a) thereof cover the use of an Irish registered vehicle by the accused while driving in Ireland. Brenda Kearns did not agree and indicated that section 8 of the Statutory Instrument could not be taken in isolation from the entire instrument which relates only to vehicles temporarily imported into the State. On the Case Stated the learned Circuit Court judge raises the following questions:- (a) whether the vehicle in question is covered for use in Ireland under the International Motor Insurance Card (hereinafter Green Card ) system; (b) Whether, on the charge before me, a policy of insurance attested to by way of the Green Card for a vehicle bearing an Irish registration plate may be a defence to such charge. The Green Card A Green Card is not a policy of insurance. More importantly it is not an approved policy of insurance for the purposes of the Road Traffic Act 1961 section 56. The United Nations in Geneva (Economic Commission for Europe, Road Transport Sub- Committee) in 1949 called upon the Governments of the European countries to adopt common standards to ensure that road accident victims would benefit from insurance cover in the event of an accident for which a foreign motorist is liable. The intention was to improve the protection of domestic victims of road traffic accidents for which a foreign motorist was responsible. In addition it was an objective than on entering a foreign country motorists should not be held up by border formalities to comply with the national insurance requirements of the country they were entering. The recommendation was given effect to by the London Agreement of 1953 which introduced the International Insurance Card, the so called Green Card. The Green Card is sufficient proof that a motor vehicle is adequately insured when entering another country to that in which it is registered and that the insurance meets the minimum insurance requirements of the country visited. The provisions of the London Agreement have been modified and extended by further agreements principally the Multilateral Guarantee Agreement. In Irish law the Green Card system was given effect to by a series of Mechanically Propelled Vehicles (International Circulation) Orders made between 1955 and The relevant provisions are contained in the Order S.I. No. 384/1992 Article 8 which provides as follows:-

4 8(1) Certificate means a certificate of insurance issued in accordance with section 66 of the road Traffic Act 1961 by a vehicle or insurer certifying that an approved policy of insurance has been issued. (2) For the purposes of Part VI of the Road Traffic Act 1961, section 12 of the Roads Act 1920 and any Regulation made under any of the said enactments, the following provisions shall apply regarding an International Motor Insurance Card in respect of the use of the vehicle referred to in the said card:- (a) the said card shall be deemed to be evidence that a certificate issued to the insured named thereon for the period shown thereon as the period of validity in Ireland; (b) the Irish Bureau shall be deemed to be the vehicle insurer which issued the evidence that a certificate was issued, and to be competent to act as a vehicle insurer; (c) notwithstanding anything contained in section 66 of the Road Traffic Act 1961, or the Regulations made thereunder, it shall not be necessary to furnish any particulars on an international motor insurance card other than those required to be furnished on the said card. (3) Section 58 of the Road Traffic Act 1961 shall not apply to the Irish Bureau and paragraphs (3) and (8) of Article 7 of the Road Traffic (Compulsory Insurance) Regulations 1962 shall not apply to an International Insurance Card. Thus where the Order has application the Green Card is deemed to be a certificate of insurance for the purposes of section 66 of the Road Traffic Act 1961 as amended. It is not a certificate of insurance. However the effect of the provision in the Order is that a person injured by the motor vehicle in respect of which the certificate exists, whether the vehicle is insured or not, the vehicle is deemed to be insured and the Motor Insurers Bureau of Ireland will satisfy any claim and in turn recoup the amount from the foreign insurer who issued the Green Card or the Bureau of the country in which the vehicle is registered if the vehicle is in fact uninsured. Within the European Union the Green Card system is provided for in a number of Insurance Directives the first Directive being Directive No. 72/166 EEC of 24th April A key recital in the Directive is the following:- Whereas the abolition of checks on Green Cards for vehicles normally based in a Member State entering the territory of another Member State can be effected by means of an Agreement between the six national insurers bureau, whereby each national bureau would guarantee compensation in accordance with the provisions of national law in respect of any loss or injury giving entitlement to compensation caused in its territory by one of those vehicles, whether or not insured. (Emphasis added)

5 Article 2.2 of the Directive provides as follows:- As regards vehicles normally based in the territory of a Member State, the provisions of this Directive, with the exception of Articles 3 and 4, shall take effect:- After an agreement has been concluded between the six national insurer s bureau under the terms of which each national bureau guarantees the settlement, in accordance with the provisions of its own national law on compulsory insurance, of claims in respect of accidents occurring in its territory caused by vehicles normally based in the territory of another Member State, whether or not such vehicles are insured. The effect of the Directive is that a vehicle normally based in one Member State may enter the territory of another Member State on production of a Green Card in which event the vehicle will be treated as insured for the purposes of compensating victims whether insured or not. On joining the EEC on 1 January 1973 Ireland became subject to the Directive. Arising out of the Directive the European Communities (Road Traffic) (Compulsory Insurance) Regulations 1975 S.I. No 178 of 1975 were introduced. By the Regulations section 56 of the Road Traffic Act 1961 was amended with the addition of the following subsections:- (7) In this part of this Act the designated territories means the European territories of the Member States, other than Ireland, of the European Economic Community, and Austria, Finland, Norway, Sweden, Switzerland, Hungary, Czechoslovakia and the German Democratic Republic. (8) In this part of this Act a reference to the territory in which a vehicle is normally based shall be a reference to the territory of the State in which the vehicle is registered; or in a case where no registration is required for a type of vehicle but the vehicle bears an insurance plate or a distinguishing sign analogous to the registration plate, the territory of the State in which the insurance plate or the sign is issued; or in a case where a registration plate or insurance plate or distinguishing sign is not required for a vehicle, the territory of the State in which the person who has custody of the vehicle is permanently resident.

6 Section 62 of the Road Traffic Act 1961 was amended by Regulation 5 of the 1977 Regulations by the addition of sub-section (1A) which provides as follows:- (1A) For the purpose of this Act a policy of insurance issued in accordance with the national laws on compulsory insurance in force in any of the designated territories other than Ireland in respect of a vehicle normally based in that territory shall be an approved policy of insurance. By the European Communities (Road Traffic) (Compulsory Insurance) (Amendment) Regulations 1987 S.I. No. 322 of 1987 subsection (1A) inserted into section 56 of the Road Traffic Act 1966 by the Regulations of 1975 was substituted by the following:- (8) In this part of this Act, a reference to the territory in which a vehicle is normally based shall be a reference to the territory of the State of which the vehicle bears a registration plate; or in a case where no registration is required for that type of vehicle where the vehicle bears an insurance plate or has a distinguishing sign analogous to the registration plate, the territory of the State in which the insurance plate or the sign is issued; or in a case where a registration plate or insurance plate or a distinguishing is not required for a vehicle, the territory of the State in which the person who has custody of the vehicle is permanently resident. By the European Communities (Motor Insurance) Regulations 2008 S.I. No. 248 of 2008 (not relevant to the prosecution in this case) the following was substituted for subsection (8):- (8) In this part a reference to the territory in which a vehicle is normally based is a reference to: (a) the territory of the State of which the vehicle bears a registration plate, irrespective of whether the plate is permanent or temporary; (b) in a case where no registration plate is required for a type of vehicle, but the vehicle bears an insurance plate or a distinguishing sign analogous to the registration plate, the territory of the State in which the plate or sign is issued, or (c) in a case where a registration or insurance plate or distinguishing sign is not required for a vehicle, the territory of the State in which the person who has custody of the vehicle is resident.

7 The European Communities (Road Traffic) (Compulsory Insurance) (Amendment) Regulations 1992 S.I. No. 347 of 1992 made further amendments to the Road Traffic Act By Regulation 6 the following was substituted for section 58 of the Act:- 58(1) In this Act vehicle insurer means subject to subsection (1) of section 78 of this Act (a) an undertaking within the meaning of Article 2(1) of the EEC (Non-Life Insurance) Regulations 1976 (S.I. No. 115 of 1976) as amended by Article 4 of the European Communities (Non-Life Insurance) (Amendment) No. 2 Regulations 1991 (S.I. No. 142 of 1991) which carries on a Class 10 mechanically propelled vehicle insurance business in the State, or (b) a syndicate, within the meaning of section 3 of the Act of 1936 carrying on that business in the State. (2) For the purpose of this section and section 78 Class 10 mechanically propelled vehicle insurance business means a mechanically propelled insurance business within the meaning of section 3 of the Act of 1936 in relation to a risk classified under Class 10 of schedule 1 of the European Communities (Non-Life Insurance) Regulations 1976 (S.I. of 115 of 1976) but excluding carriers liability. The Act of 1936 means the Insurance Act 1936 (No. 45 of 1936). The following section was substituted for section 78 of the Act of 1961 by Regulation 9 of the 1992 Regulations:- 78(1) A person shall not carry on a Class 10 mechanically propelled vehicle insurance business in the State unless he is a member of the Bureau and (3) The provisions of this section shall have effect notwithstanding any other provision of this or any other Act. (4) In this section the Bureau means the Motor Insurers Bureau of Ireland. The effect of the amendment to section 78 of the Road Traffic Act 1961 by the 1992 Regulations is to require insurers authorised in other EU Member States and designated territories, who transact compulsory third party insurance business in Ireland, to be members of the Motor Insurers Bureau of Ireland.

8 Following on from the 1972 Directive there are a number of further Directives namely Directive 84/5/EEC, 90/232/EEC, 2000/26EC and a number of Directives of the European Parliament all of which were codified in Directive 2009/103/EC. The present position is that a Green Card (while still useful as evidence of insurance) is no longer necessary as the registration plate of the country of registration is evidence of insurance and has the like effect to a Green Card: see Jacobs v Motor Insurers Bureau [2010] EWHC 231. The system was extended outside the EU to other States which have a national bureau with which an agreement has been reached. For present purposes it is sufficient to state that the Green Card is not a policy of insurance. It is a device whereby a motor vehicle is deemed to be insured whether insured or not. The Green Card operates in favour of a vehicle registered in one State visiting another State. A Green Card does not operate in respect of a vehicle within the State of registration of the vehicle: in the State of registration of a vehicle the domestic law relating to compulsory insurance applies. The Road Traffic Act 1961 as amended and compulsory insurance For present purposes the Road Traffic Act 1961 as amended requires an approved policy of insurance to be in place. Section 56 (3) of the Act of 1961 makes it an offence for the owner or user of a vehicle to drive or use a vehicle while an approved policy of insurance is not in place. Section 62(1) sets out the requirements for an approved policy of insurance: it must be issued by a vehicle insurer. A vehicle insurer is defined in section 58 of the 1961 Act as substituted by S.I. No. 347 of 1992 (see above). Section 66 of the Act of 1961 requires a vehicle insurer who issues an approved policy of insurance to furnish also a certificate of insurance. Section 69 of the Act of 1961 requires a person when required by a member of the Garda Siochána to produce a certificate of insurance: on prosecution for an offence under this section it is presumed until the contrary is shown by the defendant that he did not produce a certificate of insurance. Discussion The Mechanically Propelled Vehicles (International Circulation) Order 1992 is concerned with the recognition of the Green Card as evidence in the case of temporarily imported motor vehicles from outside the EU or designated territories. For the purposes of Part VI of the Road Traffic Act 1961 Article 8 of the Order provides that the Green Card shall be deemed to be evidence that a certificate issued to the insured named thereon for the period shown thereon as the period of validity in Ireland. The objectives of the Green Card scheme as clearly appears from the 1949 recommendations and the Mechanically Propelled Vehicle (International Circulation) Orders is to enable the issuing of a policy of insurance in the country in which a vehicle is registered which will be valid in all the other member countries of the Green Card scheme. The Green Card upon which the accuseds

9 seek to rely was not issued in the country in which the vehicle is registered. The policy of insurance upon which the Green Card is based and the Green Card were issued in Latvia. The vehicle is registered in Ireland. A Green Card issued in respect of a vehicle registered in Ireland is of no effect or relevance in Ireland. Further as between Member States of the European Union and designated territories, and at the relevant date Latvia was a member of the European Union, the relevant provisions are contained, not in the Mechanically Propelled Vehicles (International Circulation) Orders but in the European Community (Road Traffic) (Compulsory Insurance) Regulations. The Insurance Directives and the European Communities (Road Traffic) (Compulsory Insurance) Regulations apply to vehicles registered in one country travelling within another. Where the Regulations apply a Green Card or the registration plate of the country in which the vehicle is based is deemed evidence of insurance whether the vehicle is insured or not. The vehicle is deemed insured for the purposes of compensating victims of accidents in which the vehicle is involved which occur outside the country of registration of the vehicle. The deeming provision has no relevance whatsoever to the domestic law of the State requiring compulsory insurance of vehicles registered within the State. The Road Traffic Act 1961 section 56 requires in respect of a vehicle registered in the State an approved policy of insurance issued by a vehicle insurer. Vehicle insurer is defined by section 58 of the Act of 1961 as substituted by S.I. No. 347 of 1992: S.I. No. 347/92 amends section 78 of the Road Traffic Act 1961 and requires a person carrying on a Class 10 mechanically propelled vehicle insurance business in the State to be a member of the Motor Insurers Bureau of Ireland: the evidence, before the learned Circuit Court judge, of Brenda Kearns is that the Latvian insurance company is not a member of the Motor Insurers Bureau of Ireland. For these reasons the Green Card issued by the Latvian insurance company (while deemed for the limited purposes of compensating victims to be an approved policy) is not an approved policy of insurance. While the Case Stated in the passages dealing with evidence before the Circuit Court refers to a certificate of insurance it is quite clear from the Case Stated as a whole and from the submissions of the parties before this court that what is in issue is a Green Card. Under the Road Traffic Act 1961 section 69 an onus on a prosecution for an offence rests on the accused and it is for him to show that within the statutory period after the day on which the production was demanded he produced a certificate of insurance. The accuseds in this case have failed to so establish. Having regard to the foregoing I would answer the questions posed in the Case Stated as follows:- (a) Whether the vehicle in question is covered for use in Ireland under the International Motor Insurance Card (hereinafter called Green Card system). Answer: No.

10 (b) Whether, on the charge before me, a policy of insurance attested by way of the Green Card for a vehicle bearing an Irish registration plate may be a defence to such charge. DPP v Leipina & Anor Answer: No.