Post covid Sunday drives still require careful and lawful parking
Most motorists know that it is an offence to drink drive or drive beyond the speed limit or dangerously. However not so many know that it is an offence to park your vehicle in a dangerous place. On Sunday 7th of June 2020 An Garda Siochana reported that they issued over forty fixed charge notices to motorists who parked on the main road beside the Hell Fire Club.
It is worth noting that dangerous parking Section 55 of the 1961 Road Traffic Act states that:
(1) A person shall not park a vehicle in a public place if, when so parked, the vehicle would be likely to cause danger to other persons using that place.
(2) A person who contravenes subsection (1) commits an offence and is liable on summary conviction —
(a) in the case of —
(i) a first offence, where any part of the period of the contravention was a period within lighting-up hours (as declared by regulations under section 11) during which the vehicle did not fulfil the requirements imposed by law with respect to lighting and reflectors, or
(ii) a second or any subsequent offence, to a class B fine or to imprisonment for a term not exceeding one month or to both, and
(b) in any other case, to a class C fine.
(3) Where a member of the Garda Síochána is of opinion that a person is committing or has committed an offence under this section, he or she may arrest the person without warrant.
So if you go out for a day out to the woods or the park to celebrate covid19 restrictions being eased then take note of your parking and satisfy yourself that you do not fall foul of this little known law.
What does parking mean?;
RTA 1961, s 3, provides, inter alia –
“park” in relation to a vehicle, means keep or leave stationary, and cognate words shall be construed accordingly;
The Gardai are allowed to issue a fixed charge notice for dangerous driving. Offence under RTA 1961, s 55: 3 penalty points on payment of fixed charge and 5 penalty points on conviction.
Disqualification for holding a driving licence
What is dangerous parking?
In Maguire v Crouch, a case dealing with a comparable UK provision, it was held that a person commits an offence not only by leaving a vehicle just around a blind comer, but also by leaving one in a position which is safe while it is at rest but dangerous if it moves. In this case the driver parked the vehicle without setting the hand-brake so that it ran away.
Can I be prosecuted even if my parking is not dangerous - Prohibition of obstruction of traffic
It is possible to be prosecuted even if your parking is not dangerous but does cause an obstruction.
RTA 1961, s 98 provides –
(1) A person shall not do any act (whether of commission or omission) which causes or is likely to cause traffic through any public place to be obstructed
(2) A person who contravenes subsection (1) of this section shall be guilty of an offence.
(3) Where a person is charged with an offence under this section, it shall be a good defence to the charge for him to show that there was lawful authority for the act complained of or that it was due to unavoidable accident.
What is obstruction?
What amounts to obstruction is primarily a question of fact. Anything which substantially prevents the public from passing over the whole of the highway (including the footpath) and which is not purely temporary is an unlawful obstruction, subject to an exception that the offending behaviour is so minor as to not be an offence. An example of an obstruction was a case where the accepted facts were that the public were fully entitled to the use of the whole footpath available to them and an intrusion of some nine feet on to the highway at weekends for the purpose of displaying produce for sale could not be a mere technical obstruction which was to be disregarded under the de minimis rule. Likewise the parking of a van for five minutes in a wide, busy street near a bus stop and refusing to move was held to be an obstruction under s 121 (wilfully obstructing the free passage of a highway) of the Highways (UK) Act 1959. Where a vehicle making a forbidden U-turn in a very crowded street held up the traffic for fifty seconds, a conviction for causing unnecessary obstruction of the road under an English statute was upheld.
In Mounsey v Campbell, the defendant parked his van right up against the bumper of a car. The car could have been moved at that time but it was subsequently penned in by a car parked 2 feet behind. The defendant refused to move his van and was convicted of causing unnecessary obstruction. Where a lorry driver refused to draw into his nearside but drove along the centre of the road so that traffic could not overtake him the English High Court upheld a conviction for obstruction. In Broome v Director of Public Prosecutions (1974) AC 587 it was held that picketing on the street or on public roads in a manner which unduly impedes others using the thoroughfare amounts to the offence of obstructing the highway
Test of reasonableness to be applied
In O’Connor v Leonard, Mr. Leonard, the appellant was prosecuted by Garda O’Connor and was convicted in the District Court. The facts were as follows: the appellant had left a van in Castle Street, Tralee, in a position which caused traffic in a public place to be obstructed contrary to the provisions of RTA 1961, s 98. The Appellant had been delivering goods on behalf of his employer to a store. The van was 6 feet wide and there was 14 feet of roadway available between the appellant’s van and the vehicles parked on the opposite side of the road. Parking was permitted on the other side of the street for 1 hour. Held, in allowing the appeal, that RTA 1961, s 98 was not to be construed as an absolute and unqualified prohibition but that the test of reasonableness was to be applied to each case before determining whether an offence was committed or not; and that the obstruction of traffic had not been unreasonable. In the course of his judgment Judge Barra Ó Briain, President of the Circuit Court, having reviewed the authorities relating to statutes concerned with obstruction to the highway, says (at p 45) –
“In my opinion it must be assumed that the legislature was aware of the existing law and the interpretation of it when it passed the Act of 1961. Section 98(1) is absolute in its terms. However, there are no words such as ‘whether reasonable or unreasonable’. They could have been inserted. The fact that they are not is a matter of significance. I fail to see why section 98 should not be construed by the same canons of interpretation as were the earlier Acts. To hold otherwise would mean that a foreign tourist who stops at a complex road junction to read a traffic sign or a person who halts to pick up an injured person would be, prima facie, guilty of an offence. This interpretation would obviously be ridiculous.
I entirely agree with and adopt the statement of Lord Goddard, CJ, in Solomon v Durbridge (1956) 120 JPR 231 when he says –
‘I entirely fail to see how it can be said that the stationary car is not an obstruction on the highway. It certainly is, because it obstructs free passage; one cannot walk or drive over a place where a stationary car is standing but such are the exigencies of modern life that no one is going to say that leaving a car for a reasonable time is an obstruction sufficient to make it an offence.’
The legal position of a stationary vehicle in relation to obstruction of the highway is in my opinion delicately poised to meet the stress of conflicting claims to the highway. Throughout its history reasonableness has been the guiding principle of this law. It has proved a sound principle because by being flexible it meets the ever changing conditions of traffic on the road. Such an interpretation is also backed by the common sense and tradition of the Common Law.
If a vehicle impedes other traffic but the circumstances including the time duration and place of the parking are, in the view of the jury or judge, not unreasonable, no offence is committed in my view.
In the present case, I am satisfied that the vehicle was parked for ten minutes for the purpose of delivering goods. I am also satisfied that traffic was to some extent impeded, but in all the circumstances I do not think the parking was unreasonable and therefore I shall reverse the decision of the learned District Justice and allow the appeal.”
The right of an occupier of premises abutting on a highway to make use of it for the purpose of obtaining access to his premises and of loading and unloading goods is subject to the right of the public to use the highway. The conviction of a motorist was upheld by the High Court of Justiciary in England in circumstances where his car was left for 30 minutes outside his own premises in a narrow street. Where a person, intentionally by exercise of his will does something which causes an obstruction of a highway, in this case causing a crowd to gather, this constitutes wilful obstruction and it is no defence that the person believes he has genuine authority to do what he is doing if he has not lawful authority or reasonable excuse. Where lorries were parked on a grass verge and the drivers went to a café to get meals, it was held that they did not obstruct the highway merely by a temporary call for a “legitimate purpose” provided they did not stop in a place where the mere presence of a stationary vehicle would create an obstruction.
Where a street trader had for many years sold fruit from a fruit stall erected on the back of his stationary vehicle without objection from the local authority and without inconveniencing the public use of the highway it was held that such circumstances were not reasons for dismissing a charge of wilful obstruction under s 121 of the Highways (UK) Act 1959.