DVS urged to provide driving theory test in Portuguese

Monday 22 February 2021

A judge has urged Driver and Vehicle Standards to provide a theory test in Portuguese to a driver with limited English, arguing that he should be tested on his driving knowledge rather than “his facility with the English language."

The comments from Royal Court Commissioner Sir Michael Birt came in a judgment following an appeal by Antonio Jorge Perneta da Silva.

Mr Da Silva was fined £2,000 and disqualified from driving for 16 months in June 2019 after he admitted driving while the level of alcohol in his breath, 53 micrograms in 100ml, exceeded the legal limit.

At the time, Magistrate Bridget Shaw also ordered that he retake his driving test at the end of the disqualification period.

Pictured: Mr Da Silva was disqualified from driving in June 2019 by the Magistrate.

Mr Da Silva, a Portuguese national, was said to have only a limited command of English. While an interpreter and duty advocate were with him on the day of the sentencing, he said he was not aware that he would have to take the driving test after 16 months of the disqualification period, and that he would remain disqualified until he had passed the test.

Mr Da Silva said it had come as “a complete surprise” to him when he went to the Driver and Vehicles Standards Office at the end of his 16-month disqualification and was told that he would have to pass the driving test again, before he could have his licence back. 

Due to his “extremely limited” comprehension of English, Mr Da Silva said he wouldn’t be able to pass the theory test. He therefore attempted to appeal to Royal Court to have the condition removed, even though he had passed the deadline for such an appeal. 

The case was heard by Commissioner Birt, who stated in his judgment that neither the Magistrate’s Court nor the Royal Court can allow a driver to resume holding a licence after the end of the disqualification period without passing the driving test.

He also said the Royal Court would not be able to appeal the disqualification order either, because there was nothing to suggest “the possibility of arguing for the existence of ‘special reasons’ in the case."

“The only matter relied upon is the hardship to the Applicant caused by reason of the fact that it will be particularly difficult – and he would say, impossible – for him to pass the theory examination because of his limited English,” the Commissioner wrote.

“If he cannot pass the test, he will not be able to re-acquire his driving licence and will therefore suffer prolonged and indefinite hardship. However, this is something personal to the Applicant as the offender, not something related to the offence itself. It cannot therefore in law constitute a ‘special reason’.”

Pictured: Sir Michael Birt said neither the Magistrate’s Court nor the Royal Court can allow a driver to resume holding a licence after the end of the disqualification period without passing the driving test.

The Commissioner said he couldn’t allow Mr Da Silva’s request for an extension of time to make his appeal as the appeal itself was “doomed to failure."

He however noted that, after reading Mr Da Silva’s submission, he had asked the Greffier to contact DVS to see if there was any possibility of taking the theory test in Portuguese, but was informed there was none. 

He therefore suggested that DVS consider allowing Mr Da Silva to take the test in Portuguese.   

“It is of course a matter for the DVS but, on the face of it, if [Mr Da Silva] were able to satisfy DVS that his knowledge was sufficient to pass the theory paper (even if questions were asked and answered in Portuguese) and that he was familiar with and understood all the signs that he would come across on the road etc, there would not appear to be any good reason to deny him a licence,” he wrote.

“I would therefore invite DVS to see if some mechanism can be established whereby he can be adequately tested on his knowledge and safety to drive in Jersey rather than on his facility with the English language.”