A Clonmany school bus driver who was convicted of speeding with 43 schoolchildren on board has had his conviction overturned.
Denis Doherty had been convicted of speeding at Tullyarvan, Buncrana in March, 2015.
Mr Doherty of Gaddyduff, Clonmany said he broke the speed limit to ensure the safety of his passengers on his bus and to avoid an accident after overtaking a slow-moving tractor.
After hearing the evidence in the case Judge John Aylmer described Mr. Doherty as a “careful and experienced driver”.
Denis Doherty was convicted of breaking the speed limited at Buncrana District Court on the 12th May 2016.
Judge John Aylmer stated that Mr. Doherty broke the speed limit out of necessity and that the conviction should not stand and he allowed the Appeal.
Judge Aylmer also stated that “it was a textbook example of where the Defence of Necessity occurs”.
Garda detected Mr. Doherty’s school bus registration number 00 LS 4143 travelling at a speed of 69km/hour in a 50km zone.
Garda indicated that the speed detection device had a view of 150 metres and was located near an area called Pillar Park.
He stated that the bus was travelling on its correct side and that Mr. Doherty was stopped and his details were taken.
A Garda witness said he could not see the overtaking manoeuvre of the bus and what occurred thereafter due to a bend in the road.
Mr. Peter Nolan B.L., was instructed by Mr Ray Lannon, solicitor, of Michael D White and Co of Carndonagh.
In cross-examination, Mr Nolan ascertained from the Garda that he was in position near Pillar Park, Buncrana using a hand-held speed detection device. The Garda confirmed that he did not see Mr. Doherty overtaking the tractor.
Mr. Nolan put it to the Garda that there were 10 cars behind Mr. Doherty’s bus and that he saw cars coming from the Buncrana direction and that he sped up to allow the cars to pull in behind the bus and the tractor to avoid a crash. The Garda indicated that he could not see this part of the road.
He agreed that there was no hard shoulder on that part of the road where Mr. Doherty stated he had to overtake the slow-moving tractor and accelerate to avoid an accident. The Garda also agreed that Mr. Doherty had a clean record as a bus driver.
In his evidence Mr. Doherty outlined to the Court that on the 27th March 2015 he was driving a school bus from an area known as “The Parish” Buncrana to Cockhill School at approximately 9.00am. He stated that he was driving a school bus with 43 schoolchildren on board. He said he travelled the route for the past 5 years.
He said there were two cars ahead of his bus and a slow moving tractor ahead of the two cars with a round bale on the back of it. He said he travelled a quarter of a mile on a continuous white line and the two cars overtook the tractor.
Mr. Doherty gave evidence that he waited until he approached a broken white line to safely overtake the tractor further up the road at an area called Slavery, Buncrana.
He stated that when he overtook the tractor, he could see in his rear view mirror that a number of cars behind him followed the bus in overtaking the slow moving tractor.
He said that he then saw traffic coming in the opposite direction from Buncrana and that in order to avoid an accident he was forced to speed up to let the vehicles behind him pull in safely between his bus and the tractor which he had overtaken.
He stated that if he hadn’t done what he did there would have been a pile up with a possible loss of life and that his main concern was for the safety of the school children on his bus. He said he had to create a gap between the bus and the tractor for the safety of the 43 children on the bus.
The cars behind all went like sheep out of a gap. He said had no choice in the matter and was necessary for him to do what he did. Mr. Doherty told the Court that Garda Tully did a very professional job and outlined that he was given a breath test and no alcohol was involved.
A report was prepared for the court by Mr. David McLaughlin, Civil Engineer and Mr. Doherty confirmed that once he passed out the tractor the cars behind his bus started to pull out and that he increased his speed to enable cars behind him to pull in between the bus and the tractor in order to avoid an accident and threaten the safety of his passengers.
Mr. Doherty said that he did what the Road Safety Authority and his continuing professional competence training trained him to do. He stated “I prevented an accident”.
Under cross-examination from Mr. Ciaran Liddy State Solicitor, Mr. Doherty confirmed that he recalled chatting to the Garda witness and that the incident happened 300 metres back up the road.
Mr. Doherty said that there was a bend on the road and the Garda wouldn’t have seen the overtaking manoeuvre nor his acceleration. Having accelerated to avoid an accident Mr. Doherty was detected by the Garda of having driven at 69km/hour in a 50km zone.
Mr. Doherty did not deny that he had driven at this speed but gave evidence that he was a professional driver and his job was to ensure the safety of the children on board his bus and that if hadn’t speeded up to let the other vehicles pull in safely behind his bus, that there would have been a pile up.
Civil Engineer David McLaughlin confirmed that he was familiar with the road and confirmed to Mr. Nolan B.L. that there was no hard shoulder on the stretch of road where the incident occurred and that the road was too narrow for Mr. Doherty’s bus to pull in safely.
In his submission to the Court, Mr. Nolan BL raised the Defence of Necessity and cited from English case law together with Irish and English Legal textbooks on Criminal Law.
Mr. Nolan BL also referred to the case of US Airlines pilot Chelsey Sullenberger who landed his aeroplane on the Hudson river in New York in 2009 out of necessity after the engines of the aeroplane were struck by a flock of birds.
Mr. Nolan said that the pilot took the lesser of two evils. He also outlined to the Court that Mr. Doherty saw a danger which endangered the safety of the children and that he speeded up to allow other cars to fit in between the bus and the tractor and that the evidence would not contradict it.
Mr. Nolan submitted to the Court that English Law and the Irish Constitution confirmed that the Defence of Necessity must exist and that Mr. Doherty’s case was “on all fours” with the limitations on the Defence of Necessity.
Judge Aylmer ruled that he was satisfied that Mr Nolan’s submission was a correct interpretation of the law of Necessity in the Irish jurisdiction. He ruled that the constitution must allow for the Defence of Necessity in Irish Law and Irish Law cannot countenance a man being convicted where there was a real and pressing danger and in circumstances where he made a proportionate response to the situation in which he found himself.
He ruled that the evidence was not contested by the Garda and that he didn’t see what Mr. Doherty saw with the cars overtaking the tractor and that Garda Tully was oblivious to what Mr. Doherty said happened.
He outlined that Garda Tully wouldn’t have seen what Mr. Doherty saw and that there was a slow moving tractor and that cars had passed it out after Mr. Doherty’s bus had done so.
Judge Aylmer said that Mr. Doherty was a careful and experienced driver and that he saw what was happening ahead of him and all this occurred before the Garda’s checkpoint and he increased his speed from 50km/hour to 69km/hour to allow the overtaking cars behind him to pull in safely between the bus and the tractor.
Judge Aylmer further stated that “It was a textbook example of where the Defence of Necessity occurs”. He concluded by stating that one must be allowed to break the speed limit in a case where breaking the speed limit was justified in order to avoid an accident and that the law would be an ass if an increase in speed wasn’t allowed in order to avoid an accident.
He accepted Mr. Nolan’s legal submission and reaffirmed that what Mr. Doherty did was out of necessity and the conviction should not stand and the Appeal was allowed.