Browne v Ireland

• Jurisdiction: Ireland
• Judgment Date: 16 July 2003
• Docket Number: [S.C. No. 139 of 2002]
• Date: 16 July 2003
• Court: Supreme Court

Supreme Court

[S.C. No. 139 of 2002]

Browne v. Ireland

Vincent Browne

Applicant

and

The Attorney General, The Minister for Marine and Natural Resources, Ireland and Judge James O'Connor

Respondents

Cases mentioned in this report:-

Armement Coopératif Artisanal Vendéen (A.C.A.V.) v. Council of the European Union (Case T138/98) [2000] II E.C.R. 341.

Cityview Press v. An Chomhairle Oiliúna [1980] I.R. 381.

Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland (Case 804/79) [1981] 2 E.C.R. 1045.

Maher v Minister for the Agriculture [2001] 2 I.R. 139; [2001] 2 I.L.R.M. 481.

Meagher v Minister for Agriculture [1994] 1 I.R. 329; [1994] 1 I.L.RM. 1.

European Union - Criminal law - Indictable offence - Fisheries - Delegated legislation - Principles and policies - Whether minister could create indictable offence by statutory instrument to give effect to Council Regulation - Whether parent legislation provided power to minister to create indictable offence by statutory instrument - Whether power plain and unambiguous - Sea Fisheries (Driftnets) Order 1998 (S.I. No. 267) - Fisheries (Consolidation) Act 1959 (No 14) s. 223A - European Communities Act 1972 (No 27) s. 3(3) - Fisheries (Amendment) Act 1983 (No. 27) - Constitution of Ireland 1937 Article 29.4.5 - Council Regulation (E.C.) 1239/98 - Council Regulation (E.C.) 894/97.

Appeal from the High Court.

The facts have been summarised in the headnote and are fully set out in the judgments of Keane C.J and Denham J., infra.

The applicant was granted leave to apply for judicial review by the High Court (Kelly J.) on the 19th December, 2000. By notice of motion dated the 3rd January, 2001, the applicant applied to the High Court for, inter alia, an order of prohibition against the first respondent from prosecuting him on indictment for an offence contrary to Sea Fisheries (Driftnet) Order 1998. The order of prohibition was granted by the High Court (Kearns J.) on the 6th March, 2002.

By notice of appeal dated the 21st May, 2002, the respondents appealed to the Supreme Court. The appeal was heard by the Supreme Court (Keane C.J., Denham, Murray, McGuinness and Hardiman JJ.) on the 29th and 30th April, 2003.

The respondents appealed an order of the High Court (Kearns J.) granting, inter alia, an order of prohibition against the first respondent from prosecuting the applicant on indictment for an offence contrary to Sea Fisheries (Driftnet) Order 1998. The Order of 1998 was stated by the second respondent as being in exercise of the powers conferred on him by s. 223A (inserted by s. 9 of the Fisheries (Amendment) Act 1978, amended by s. 4 of the Fisheries (Amendment) Act 1983) of the Fisheries (Consolidation) Act 1959, inter alia, for the purpose of giving effect to Council Regulation (E.C.) No. 1239/98 of the 8th June, 1998.

Held by the Supreme Court (Keane C.J., Denham, Murray, McGuinness and Hardiman JJ.), in dismissing the appeal and affirming the order of the High Court, that, as secondary legislation could not create an indictable offence in order to give effect to principles and policies of regulations necessitated by s. 3 of the European Communities Act 1972, the second respondent had acted ultra vires in purporting to create an indictable offence by secondary legislation without an Act of the Oireachtas having provided for such a power in clear and plain language.

Obiter dictum: (per Keane C.J.): Whether the creation of an indictable offence was necessitated by the obligations of membership of the European Communities did not affect the power of the minister to make such a regulation.

Cur. adv. vult.

Keane C.J. 16th July, 2003

The factual background

The applicant is the master of an Irish fishing vessel, the M.F.V."Antonia". His livelihood depends principally on fishing for tuna and he is a member of the Irish Tuna Association. On the 24th June, 2000, the Antonia was fishing for tuna in an area of the Atlantic some 400 miles southwest of Dingle and 200 miles outside the exclusive fishery limits of the State. While it was so engaged, it was boarded by a party from an Irish naval vessel led by sub-lieutenant Bernard Heffernan. The applicant having confirmed that he was fishing for tuna, his fishing gear and nets were inspected. He was asked to shoot all the nets on board in the water and, this having been done, they were measured. He was then advised that he and the boat were being detained on suspicion of having in excess of the permitted quantity of drift nets on board and that they would be escorted to Castletownbere. The vessel and gear were subsequently detained by an order of the fourth respondent and the applicant was charged with two charges of being in breach of the relevant regulations. The fourth respondent returned the applicant for trial to the Cork Circuit Court, but on the 19th December, 2000, he was given leave by the High Court to apply for orders of prohibition and certiorari in respect of these proceedings on a number of grounds to which I shall refer in more detail at a later stage. A statement of opposition having been filed on behalf of the respondents, the judicial review proceedings came on for hearing before the High Court (Kearns J.). In a reserved judgment delivered on the 6th March, 2002, he granted the applicant, inter alia, an order of prohibition restraining the first respondent from prosecuting him on the charges in question. From that judgment and order, the respondents now appeal to this court.

The background to the litigation is a maze of Acts of the Oireachtas and orders made thereunder and regulations of the European Union. However, before identifying the particular provisions which gave rise to the detention of the Antonia and the prosecution of the applicant, the factual context of the regulatory scheme, of which it was alleged the applicant had fallen foul, must be explained in more detail.

From the late 1980s onwards, there has been concern at an international level over the potentially damaging effects of the use of drift nets for fishing on the ground that it constitutes an indiscriminate and wasteful method of fishing with harmful consequences for the conservation of natural resources. One particular cause of concern was that they resulted in catches of cetaceans or marine mammals such as dolphins.

Since the early 1990s, Irish fishing vessels have been fishing for albacore tuna in the northeast Atlantic by means of drift nets. A European regulation (Council Regulation (E.C.) 894/97 of the 29th April, 1997) provided that, as from the 1st January, 2002, no vessel was to keep on board any drift nets intended for the capture of certain species of fish, including albacore tuna. Until the 31st December, 2001, the regulations provided for a transitional regime, under which a vessel could keep on board for use as nets for fishing one or more drift nets, the total length of which did not exceed 2.5 kilometres, provided that it was authorised so to do by the competent authorities of the relevant member state (in Ireland, the second respondent). There were also restrictions on the number of authorisations that could be granted by the member state during the transitional period.

When the Antonia was boarded by Lieutenant Heffernan and his party on the day in question, he was told by the applicant that there were 2.5 kilometres of drift net stowed in the pen on the vessel. When this net was shot at the request of Lieutenant Heffernan, the crew of the fishing vessel attached floatation buoys on to lines on the net. These lines were fixed to the surface line of the net, i.e., the line that has smaller buoys permanently attached to it. It is not in dispute that such a net is a "drift net" within the meaning of the relevant Irish regulation relied on by the first respondent in the pending proceedings, i.e.,

"A wall of netting used in fishing, which is free to move according to the wind and tide."

When measured by one of the boarding party, it was found to be 2.545 kilometres in length, i.e., only marginally longer than the length permitted under the relevant regulations.

However, there was a second net in the pen which the applicant said was a "bottom set gill net", i.e., a net of a type which could be anchored to the sea bed so that it could not drift with the wind and tide. When the applicant was told by Lieutenant Heffernan that he wanted to measure this net also, the applicant asked whether he could attach anchors to it, but this request was refused. The net was then shot and measured in the same manner as the first net and was found to be 4.554 kilometres in length. The applicant claims that this was not a "drift net" within the meaning of the relevant regulations, that it was not being used for fishing when the boarding party intervened as the waters were too deep, but that, as the boat came to shallower water, the net would be used with anchors attached.

Whether the second net was a "drift net" for the purposes of the relevant regulation is, it is accepted, a matter that would have to be determined in the pending criminal trial, if it was allowed to proceed. The first and second respondents contended that the carrying on board the vessel of a net of these dimensions was in breach of the relevant regulation and the fact that there were anchors and fittings on board which could secure it to the ocean bed did not prevent it from coming into the category of a drift net.

The detention order granted by the fourth respondent was for 48 hours, during which time the catch was offloaded and sold, the proceeds of £16,900 being retained pending the outcome of the prosecution.

The applicant having waived any preliminary examination, he was returned for trial on two charges. The first was that he:-

"did keep on board the said sea fishing vessel, a drift net prohibited by art. 11 of Council Regulation (E.C.) No. 894/97 of the 29th April, 1997, as...