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Important Information about: appeals relating to driving tests.

Posted on 1 August 2012, under the category RSA Press Release

This is for your information as it is a High Court Judgement that relates to driving test appeals to the District Courts and will be of interest to ADIs and their students. We welcome the Judgement and the clarification that it provides about the role and standing of the RSA but more particularly the manner in which it clarifies the professional standing of driver testers. In January, we undertook to take a “consultative case stated” to the High Court to clarify the provisions of the legislation surrounding driving test appeals. Different courts were taking diverse interpretations of the existing legislative provisions. A consultative case stated means that we could pose legal questions to a High Court Judge, and ask for clarification surrounding that piece of the legislation. Eight questions were posed to the High Court. The judgement by the High Court Judge was made yesterday, and each of the 8 legal questions posed were found in the RSA’s favour. The significance of this is that we will now be able to present this judgement at each District Court appeal which we attend in future, which that judge will no doubt abide by seeing as it was a clarification on legislation made at a higher judicial level. It will also hopefully mean that our appeal hearings will be shorter in duration, as this document clarifies a lot of issues which the District Court judge may spend time questioning in court. The judgement goes through each of 8 questions in a clear manner and the judge has also written about the significance of the role of the Driver Tester in road safety.

The questions posed to the Judge and his answers are set out below;

Question 1: In the appeal pursuant to section 33(6)(a) of the Road Traffic Act 1961, is it an excess of jurisdiction on the part of the District Court to consider “not properly conducted” to include findings of fact on the part of the Road Safety Authority”?
Judges Response: Yes, it is in excess of its jurisdiction for the District Court to review findings of fact made by the RSA. The Courts only role is to investigate whether there was any way in which, taking the test as whole, it was not properly conducted.

Question 2: Is the meaning of the words “not properly conducted“ in section 33(6) (a) of the 1961 Act limited to manifestly illegal and /or improper acts on the part of the Road Safety Authority.
Judges Response: Yes, the words “not properly conducted” should not be interpreted so to allow an appeal to those who are merely dissatisfied with the result of their test. The right of appeal under s.33(6)(a) is limited to where there was improper conduct on the part of the tester in his conduct of the test. It is not sufficient that the District Court would have come to a different decision to that of the tester. The circumstances in which the District Court should intervene are only where a tester has conducted the test in a way that is improper.

Question 3: Do the words “not properly conducted” as set out in section 33(6)(a) of the 1961 Act permit the District Court to review the test based on the testimony of the appellant that the Road Safety Authority failed to adhere to the rules of the road?
Judges Response: The respondent complains that during the District Court proceedings Judge Collins requested sight of the test report sheet which details the decisions made by the tester. Judge Collins then heard testimony from both the applicant and the RSA on “how did you determine that blue tick”or “why did the candidate get that red mark”. This involves the District Judge possibly interposing her judgement of the appellant’s driving ability for that of the tester. The role of the Court is limited to determining, not whether the tester was right in his assessment, but whether he conducted the test properly. Even if the judge on such enquiry disagreed with the assessment of the tester, the judge has no jurisdiction to interpose her judgement for his. The answer to the third question is no.

Question 4: Does the ambit of section 33(6)(a) afford an appellant the right of appeal if merely aggrieved with the result of the test?”
Judges Response: As noted above, the wording of s.33(6)(a) of the Act clearly limits appeals to circumstances where the test was not properly conducted. The answer is no.

Question 5: Is it an excess of jurisdiction for the District Court to review the findings of fact by the Road Safety Authority documented on the test report sheet?
Judges Response: The purpose of each test sheet is to document the findings of fact by the tester. The report sheet is carried by the tester and completed during the test. The test report sheet may be viewed by the District Court to ensure the reasons explaining the decision to fail were given to the applicant. The Court may check for any clear error on its face which may have misled the applicant. It should not however attempt to interpose its view for that of the tester. The Court must not substitute its view for that of the RSA but must ensure that the test was not improperly conducted. The answer to the fifth question therefore is no.

Question 6: Is it within the jurisdiction of the District Court to review the test report sheet?
Judges Response: No, save as provided in answer five.

Question 7: Is the testimony of the appellant which merely contradicts the findings of fact by the Road Safety Authority sufficient to vitiate the determination by the Road Safety Authority that the applicant was not competent to drive?
Judges Response: No, as set out above findings as to competence to drive are matters exclusively for the RSA. Testers alone determine competence to drive.

Question 8: If the District Court determines that the test was not properly conducted and orders that a further test be conducted in accordance with Section 33(6)(a) of the 1961 Act :
(a) Does this abrogate the original test?
(b) Does this vitiate the finding that the appellant was not entitled to a certificate of competency or merely that he is entitled to a second test?
(c) If the District Court Orders a further test should the original test result remain on the record of the appellant?
Judges Response:
(a) The answer is no as the word “further” in s.33(6) suggests that the original finding is not overturned.
(b) No, it merely entitles him to a retest.
(c) Yes, as the use of the word “further” indicates that there should be a subsequent test. The earlier one should be recorded by the Authority because it took place.

This information is provided to enable you to answer queries in relation to the possibility of an appeal following a practical driving test, we trust that you find it useful in that regard.

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