Is Gardai breaking the law by seizing cars?

Dazzler88

A CO Donegal man whose son took on Gardaí in court after his car was seized and won says more motorists need to legally challenge the practice.
John Doherty spoke out after both Customs and Gardaí seized a total of 60 vehicles across the county in the past three weeks.
The Customs seizures related to UK-registered vehicles which hadn’t Vehicle Registration Tax (VRT) paid. The Garda seizures related mainly to non-payment of road tax.
But despite losing a court case five years ago over the practice, Gardaí are continuing to seize vehicles.
John’s son John Jnr had his car seized in Letterkenny five years ago. It was registered in Northern Ireland at the time.
“The garda in the case said he was seizing John’s car under Section 139 of the 1992 Finance Act,” said John Snr who is part of the Irish Drivers Association lobby group.
“John replied that by taking his car the garda was in breach of his rights under European Law, specifically articles 25 and 39 of the Treaty of Rome; that gardai would be in breach of his rights on freedom of movement as well as in breach of diue process under the Irish Constitution.
“This effectively says that seizure of goods more than the amount allegedly owed to the State is illegal.”
John Snr also confronted Gardai who said his son had a Republic of Ireland drivers’ license. But he responded that it was a European-wide license, which allows him to hire a car whilst abroad – without breaking any laws.
It took more than two years for the case to get to court where John Jnr rejected a plea bargain offer on charges of resisting arrest and possession of a foreign-registered vehicle.
“The Gardai regretted taking the case to court and offered to drop the resisting arrest charges if the VRT charge was pleaded to but we rejected this,” said John Snr.
“In court we told Judge Kevin Kilrane that John had told the garda on the night that failure to deal with the matter by summons was breaching his rights and the judge agreed.
“He told the garda that in future he should follow due process. The cases were thrown out of court.”
He says the Irish Drivers Association is now advising motorists how to handle a situation where a car is being seized.
“What the association are advising people when confronted by customs or Gardai about car seizures in relation to road tax or customs duties/VRT is simply to inform the respective officer that he/she must follow due process and issue them with a summons,” said John.
“Every officer has a duty of care to uphold that person’s Constitutional rights.
That way they get a fair trial by a court. No roadside penalties should be paid in lieu of going to court. No seizure fee should be paid. By enforcing any of these penalties the State denies you your constitutional right to a fair trial in court.
“This is now a fact and has been proven in Letterkenny Court in the case of DPP v John Doherty. Judge Kilrane told the Garda that it was a draconian measure to lift anyone’s car on the roadside. Striking out the case, the judge told the Garda ‘in future guard, follow due process’.”

Due Process – the law

This is the guidance given to motorists from the Irish Drivers Association:
Irish constitutional law
1. The 3rd amendment to the constitution. Ireland’s accession to Europe. Known as the 1972 European Communities Act. This is where the Gov of 1992 signed up to the terms of the treaty of Rome.
2. Constitutional law
The constitution is the highest law in the land and no other acts of law introduced by governments shall supersede same. The constitution can only be changed or amended by the people by means of a referendum.
3. The 1992 Finance Act is an introduction of law which supposedly gives Gardai and Customs the powers of seizure which is contrary to article 15.which states “The Oireachtas shall not enact any law which is in any way repugnant to the constitution or any part thereof.”
4. Article 38 The right to a Fair Trial
Article 38 the right to a fair trial in court by a Judge/ jury. If Gardai and customs start to act as judge jury and executioner on the roadside then we no longer need the courts.
5. Article 37
Every person appointed a judge shall swear an oath to uphold the constitution. And should bring it to the attention of the court where summons are been issued under the 1992 finance act giving powers of seizure is contrary to constitutional law.
6. Article 43 property rights
Your property is yours and can not be seized detained or otherwise unless on foot of a court order signed by a Judge not a ( court clerk ) in other words if it’s not signed by a judge it’s not Valid.
………………………………………………………
European law. Treaty of Rome
European principles of proportionality
A court order can not be issued to collect revenue if the property exceeds that which is due to the state. In short they can only lift to the value of, but not above.
Treaty article 10
Member states shall take appropriate measures to ensure fulfilment of the obligations arising out of the treaty.
Article 14
The community shall adopt measures
With the aim of establishing the internal Market over a period expiring on the 31.12.92
Article 25
Customs duties on imports and exports and (charges having equivalent effect) /VRT shall be prohibited between member states.
Article 39. Free movement.
The free movement of goods. Persons. And capital.

Dazzler88

Just wondering what your thoughts on the above case are? Is this a precedent, will it mean a lot of cases thrown out of court?

hullaballoo

Freeman tripe.

Dazzler88

hullaballoo wrote: »

Freeman tripe.

That was my initial thoughts on it aswel but this guy won his case. Judge agreed that the Gardaí in question was in breach of the law.

hullaballoo

Dazzler88 wrote: »

That was my initial thoughts on it aswel but this guy won his case. Judge agreed that the Gardaí in question was in breach of the law.

Sorry, I missed that part.

It's still Freeman tripe. It's just that on this occasion, the tripe was dressed up as a gourmet meal and bought by the DC judge. DC decisions are not binding.

I'd like to buy into the theory that I have inalienable rights in relation to my property but it is simply not the case. There are countless examples where it is perfectly lawful for others to take my property even when I don't want them to. Tax is a good example...

Losty Dublin

Correct me if I am wrong but the DPP lost a criminal case at hand; John Doherty didn't win anything here.

Robbo

Sounds a lot like the work of Ryan Stewart and his VRT-hating mob in Donegal. Every 6 months or so, he declares a victory against VRT yet somehow, the rest of the world outside Donegal either fails to notice or to agree. This often co-incides with his attempts to seek election.

I'm surprised that the DJ bought it but that's the District Court for you. You can tell the breadth of knowledge Stewart has of EU law when he still refers to the Treaty of Rome and the unamended Article numbers.

I could go into the many reasons why VRT is sound under EU and Irish Constitutional Law but you mightn't be able to drive or operate heavy machinery afterwards...

Pat Mustard

http://www.donegaldaily.com/2014/04/11/we-won-court-case-when-gardai-seized-car-you-can-do-the-same/

The article is extremely unclear as to what actually happened in this matter. The whole report appears to be based on an interview with Doherty, rather than on any impartial court report.

Two charges were mentioned; one of resisting arrest and another in relation to VRT.

It seems that the charges were dismissed but the reasons for dismissal were not given. Summonses were mentioned but it is not clear what was wrong with the summonses. Perhaps the reason was not understood.

I can't imagine why an Irish judge would refer to due process. Due process of law is a US principle. A similar principle in Ireland would be that of fair procedures. However, perhaps there was some argument about abuse of process. If so, it is not clear from the article.

This report has been billed as winning a court case when it comes to the impounding of a vehicle. However, the court only dealt with the apparent dismissal of the two charges listed above, and the correct legal reason for the dismissal of the charges has not been described.

It's kind of like saying that you won a match but you can't describe how, and you don't know your score or your opponent's score, or even what sport you were playing really. But the ref liked you.

Little CuChulainn

Correct me if I'm wrong but there is no doctrine of free movement of persons about the EU, it's free movement of workers.

Also, to my knowledge, VRT has not been found to be a custom/excise charge as defined under E.U. law and is allowed.

EDIT: Actually I remember emailing someone in the EC about this a while back and this is the response I got.

You wanted to know how come the Irish car registration tax was compatible with the European Community Treaty and in particular with those provisions dealing with the free movement of goods.

The short answer is that the registration tax is not a customs duty but rather an internal tax on a particular type of good (cars). Article 25 of the Treaty forbids customs duties. Article 90 on the other hands only requires that internal taxes do not discriminate against products originating in other parts of the internal market.

So provided an internal tax does not discriminate against similar foreign products (e.g. imagine Ireland imposed a higher excise duty on Scottish whisky than on the locally produced sort), or affords indirect protection to local products (imagine Spain applying a higher rate of VAT to fruit varieties which it does not produce so as to protect oranges), internal taxes are not contrary to EU Law.

Ken.

Little CuChulainn wrote: »

Correct me if I'm wrong but there is no doctrine of free movement of persons about the EU, it's free movement of workers.

Also, to my knowledge, VRT has not been found to be a custom/excise charge as defined under E.U. law and is allowed.

EDIT: Actually I remember emailing someone in the EC about this a while back and this is the response I got.

So basically the government can tax the ****e out of cars as long as they done the same to Irish produce cars if such a thing existed.

Johnboy1951

This is the part that stood out for me

“This effectively says that seizure of goods more than the amount allegedly owed to the State is illegal.”

I am unclear as to what the "This" is in the writing above.

What if anything implies this to be true?

Thanks.

Garyf72

https://www.boards.ie/discussion/comment/90276596#Comment_90276596

It means that the Irish authorities are exercising double standards, the treaty of Rome supersedes the finance act, under which vehicle seizures take place. They only get away with this because there is no legal challenge in response, due to the fact that most people do not understand the law. A vehicle cannot be seized due to overdue Customs fees, unless the fees due are more than the value of the vehicle, this is very clear under the treaty of Rome. 

This isn't freeman nonsense, this is the law, signed and sealed.

Del2005

https://www.boards.ie/discussion/comment/121560477#Comment_121560477

Yet in the 10 years since this was started cars are still being seized and no free man has challenged it. They have even added more reasons to seize a car.

Dav010

https://www.boards.ie/discussion/comment/121560477#Comment_121560477

This is nonsense, fermented for 10 years.

coylemj

Gardai seize cars every day, they often post photos on Twitter showing the car up on a loader and give the reasons why it was seized. If it was contrary to any law, they would have been told to stop the practice a long time ago. And the people whose cars were seized would be in the civil courts every week, getting judgements for loss of earnings, false arrest, assault etc. etc.