A man who was disqualified from driving by the Summary Court is now allowed to drive for work purposes, following his successful appeal to the Grand Court.
Mr. Justice Alexander Henderson imposed the new sentence that allows the man to drive between 6.30am and 5.30pm Monday through Saturday.
He did so after hearing arguments presented by Attorney Anthony Akiwumi. The judge observed that his decision would affect not just this case.
He referred to the penalty as ‘intermittent disqualification’ as distinct from ‘absolute disqualification’ and noted that other jurisdictions do allow it.
The driver, who was disqualified in August 2004, had asked the Grand Court for permission to drive in order to assist with the restoration of the island after Hurricane Ivan. As project manager for a construction company, he said he was supervising 14 jobs and needed to meet at the sites with both clients and workers (Caymanian Compass, 21 December).
The appeal was adjourned and the driver subsequently instructed Mr Akiwumi to act for him.
On Friday, Mr. Akiwumi reminded the court that part of the reason for staying the sentence of two years disqualification was because of the exceptional hardship to the appellant and his employer.
Mr. Justice Henderson agreed that at the time it had been made clear that the man’s services were essential to the hurricane relief effort. Now, he indicated, he wanted to hear arguments on the law and any precedents.
Law revised. Mr. Akiwumi handed up the Traffic Law (2003 Revision) and explained that disqualification for driving under the influence of alcohol is no longer mandatory. It is now discretionary.
The current law says that the convicted person is liable to disqualification from driving for 12 months or longer. The judge commented that this was classic draftsman’s language for a penalty that may or may not be imposed. He asked to see the wording of the old law.
The matter was stood down so that Mr. Akiwumi could retrieve a copy of the 1991 Traffic Law. It stated that the convicted person ‘shall’ be disqualified. In law, shall means must.
Crown Counsel Scott Wilson pointed out that if it was the intention of the Legislative Assembly to give the court discretion, they clearly offered no guidance as to how that discretion should be exercised. In that case, the court would look to the UK, where no discretion is exercised unless there are exceptional hardships or special reasons.
Finding it difficult to do one’s job or even losing one’s job is not an exceptional hardship, Mr. Wilson submitted. If the appellant is so indispensable, his company could hire him a driver, he suggested.
Decision. The judge said he first had to decide whether he had the jurisdiction to give an intermittent sentence.
It seemed to him that the language of the new Traffic Law no longer made it mandatory for the magistrate to impose a driving disqualification. He took it to mean that the magistrate would have the discretion to impose no disqualification at all. If imposed, it would be for 12 months or longer.
The next question was how this affected intermittent disqualification. He had been told there were Cayman authorities on the subject. In his view, such sentences could be appropriate, depending on the circumstances of cases.
Intermittent disqualifications carry a considerable potential to deter offenders, he said. They can protect the public from the danger of a repeat offence by covering hours when alcohol would most likely be consumed. They can also serve a public service, in that the offender does not lose his ability to work and support his family.
For these reasons he would not read the legislation as prohibiting intermittent disqualification. If the law did prohibit it, it would have said so.
He noted that English law has a specific statutory provision for intermittent disqualification only where the defendant demonstrates that an absolute disqualification would impose exceptional hardship. But there is no similar provision in Cayman law.
The judge’s view was that discretion should be somewhat broader than is implied by the term exceptional hardship. He thought intermittent disqualification should be imposed with restraint and only where some clear purpose for doing so was made out.
The judge then went on to consider in what circumstances such a sentence should be available. There will be cases in which it would be inappropriate because of the facts of the case or the circumstances of the offender.
In the case before him, the driver had no previous convictions; there was no accident, no damage to person or property.
The judge was persuaded that discretion could be exercised in favour of the appellant. He therefore substituted a sentence of two years disqualification, but with permission to drive during the man’s working hours.