Attorney General v Judge Sheehy

• Jurisdiction: Ireland
• Judgment Date: 04 April 1990
• Date: 04 April 1990
• Docket Number: [S.C. No. 74 of 1988]
• Court: Supreme Court

Supreme Court

[S.C. No. 74 of 1988]

Attorney General v. Judge Sheehy

The Attorney General

Applicant

and

His Honour Judge David Sheehy, Respondent and John Bowman, Notice Party

Case mentioned in this report:—

Kostan v. Ireland [1978] I.L.R.M. 12.

Criminal law - Fisheries Acts - Offence - Arrest and detention of boat by sea fisheries protection officer - Order of District Court releasing boat on payment into court of security for costs, fines and forfeitures - Master of boat convicted of offence - Order for fine and costs to be deducted from money lodged as security - Balance to be returned to defendant - Order for forfeiture of catch and fishing gear - Catch and gear no longer within jurisdiction - Whether court had power to order additional sum to be deducted from security in lieu of order of forfeiture - Fisheries (Consolidation) Act, 1959 (No. 14), s. 235, sub-s. 2 (a) - Fisheries (Amendment) Act, 1978 (No. 18), s. 2, sub-s. 5, s. 14.

Appeal from the High Court.

On the 19th November, 1986, one John Bowman, master of the sea-fishing boat Mar Tigre ("the notice party"), was convicted by the respondent in Letterkenny Circuit Court of failing to keep a log book of the operations of his boat in contravention of certain European Commission regulations and of the Sea Fisheries (Control of Catches) Order, 1985. The respondent fined the notice party and ordered him to pay a sum in respect of the applicant's costs of the proceedings. In addition the respondent ordered that the catch and fishing gear of the notice party be forfeited. That catch and gear had been released from the custody of a sea fisheries protection officer by order of the District Court made on the 10th October, 1985, on the lodgment into court of a sum of money held to be sufficient security to provide for the payment of any fine and order for costs and for the value of any forfeiture which might be ordered. The respondent ordered that the fine and costs be deducted from the security and that the balance be returned to the notice party, and refused to make an order deducting a sum equal to the value of the catch and gear from the security in lieu of forfeiture.

On the 23rd January, 1987, the applicant applied to the High Court (Barron J.) and obtained leave to apply by way of judicial review for an order of certiorariquashing the respondent's order, and for an order of mandamus directing him to make an order that a sum be paid out of the security lodged in lieu of an order of forfeiture. The Court ordered that the notice party be served with notice of the application.

The applicant's application, by notice of motion dated the 30th January, 1987, was heard by the High Court (Murphy J.) on the 3rd April, 1987, and was refused by him in a judgment delivered on the 25th January, 1988. (See [1988] I.R. 226).

The applicant's appeal against the judgment and order of Murphy J., by notice of motion dated the 2nd March, 1988, was heard by the Supreme Court on the 14th February, 1990.

Section 235, sub-s. 2 (a) of the Fisheries (Consolidation) Act, 1959, as inserted by s. 14 of the Fisheries (Amendment) Act, 1978, provides that a district justice may require a boat which has been detained pending charges under the Act to be released upon payment into court of a sum of money which is sufficient security for payment of the fine and award of costs which may be ordered and for the estimated value of any catch and gear which may be forfeited upon the determination of the proceedings.

The notice party was master of a boat which was arrested and detained by a sea fisheries protection officer, and he was subsequently charged with an offence under the Fisheries Acts. He obtained from the District Court an order releasing the boat upon lodgment of security. Upon being convicted by the respondent in the Circuit Court he was fined and ordered to pay the costs of the proceedings. The court also made an order under s. 2, sub-s. 5 of the Act of 1978 for the forfeiture of the catch and fishing gear of the notice party.

On behalf of the applicant, the prosecuting authority under the Fisheries Acts, it was submitted to the Circuit Court that the value of the catch and gear forfeited, together with a sum in respect of the fine and costs, should be deducted from the security lodged in court, and that such sums should be paid to the applicant in lieu of the order for forfeiture. The ground for this application was that an order for forfeiture could not be executed, as the notice party's catch and gear had been removed from the jurisdiction of the...