Claude Michael Joseph Lavole and Carvida Ltd v District Judge John O'Donnell, Ireland and Attorney General

• Jurisdiction: Ireland
• Judge: Murray C.J.
• Judgment Date: 27 July 2007
• Neutral Citation: [2007] IESC 35
• Court: Supreme Court
• Docket Number: 186/05,[S.C. No. 186 of 2005]
• Date: 27 July 2007

THE SUPREME COURT

Murray C.J.

Kearns J.

Irvine J.

186/05

Between

Claude Michael Joseph Lavole

and

Carvida Limited

Applicants/Appellants

v

District Judge John O'Donnell, Ireland and the Attorney General

Respondents

Abstract:

Practice and Procedure - Criminal law - Fisheries Law - Judicial review - Statutory interpretation - Jurisdiction - Re-enactment - Detention vessel - Interpretation Act 1937 - Fisheries (Consolidation) Act 1959, as amended

: The appellant appealed an order of the High Court refusing certiorari of an order directing the detention of a fishing vessel. The vessel was arrested in connection with a suspected logbook offence. The appellant submitted that the District Court judge had no jurisdiction to make the order pursuant to s. 4A of the Criminal procedure Act 1967, as inserted by s. 9 of the Criminal Justice Act 1999. The appellant was not brought before the District Court "as soon as may be" pursuant to s. 234 of the Fisheries (Consolidation) Act 1959. A section referred to in the Fisheries legislation had been repealed. It was asserted that the District Judge thus acted outside jurisdiction

Held by the Supreme Court, per Murray C.J., that the changes made did not entail that the powers exercised by the District Court were different. The High Court had not erred in its interpretation of the legislation. The power to detain vessels was not limited to the restrictive period asserted. The appeal would be dismissed.

Reporter: E.F

1 JUDGMENT of Murray C.J. delivered on the 27th day of July 2007

2 This is an appeal by the Appellants from an order of the High Court refusing, in an application by way of judicial review, an order of certiorari quashing the order of the first named respondent dated 7th December, 2004, which directed the detention of a fishing vessel pursuant to section 234 of the Fisheries (Consolidation) Act, 1959 as inserted by section 13 of the Fisheries (Amendment) Act, 1978 and amended by section 12 of the Fisheries (Amendment) Act, 1994.

3 The order directed that the vessel be detained at the port of Killybegs until the prosecution which had been instituted against the first named Appellant, for an offence under certain provisions of the said Act, had been adjudicated upon by a District Court judge under s. 4A of the Criminal Procedure Act, 1967 as inserted by s. 9 of the Criminal Justice Act, 1999 or otherwise adjudicated upon. In addition the order provided for the release of the vessel on the provision of a surety in cash or in the form of a bond in the sum of EUR165,000.

4 Background

5 The first named Appellant is the captain of the fishing vessel, the "Carvida" which was the object of the Order of detention pursuant to s. 234. It is an Irish registered vessel. The second named Appellant is the owner of the vessel.

6 It was arrested in the early hours of December 3rd 2004, by Mr. James Boyle, a sea fisheries protection officer, pursuant to s. 233 of the Fisheries Act 1959. At the time of the arrest and detention of the vessel the first named Appellant was informed that the vessel and its crew, including the captain, were being detained at the port of Killybegs pursuant to section

7 233(1)(g)(ii) of the Fisheries Consolidation Act 1959 hereafter the Act of 1959. The vessel was arrested in connection with a suspected logbook offence. This is a potentially serious offence as the proper maintenance of logbooks on fishing vessels is a key element in the supervision and enforcement of the fishery laws.

8 As the learned High Court judge indicates in his judgment the first named Appellant was not brought before the District Court in Donegal until Sunday 5th December, 2004, because no District Court judge was available on Saturday 4th December. When he was brought before the District Court on December 5th an application was made for a 48 hour detention order in respect of the vessel pursuant to section 233A of the Act of 1959. That section was inserted by section 12 of the Fisheries (Amendment) Act 1978. The first named Respondent made an order for the detention of the vessel from 11.45 a.m. on 5th December 2004.

9 On Monday 7th December, 2004, at 8.05 a.m., the first named Appellant was arrested by a member of the Gardaí and brought to Killybegs Garda Station where he was charged with a number of logbook fishery offences. The Appellant was then brought before Letterkenny District Court at 11.35 a.m. where Garda McNicholas gave evidence of arrest, charge and caution. According to the learned High Court Judge's findings the matter appears to have been allowed to stand in the District Court list until 4.25 p.m. that afternoon. In the meantime both the solicitor for the Appellant and the solicitor acting for the State engaged in discussions, inter alia, for the purpose of agreeing the amount of a bond which could be entered into in lieu of the physical detention of the vessel, its fishing gear and catch in the event of an Order for detention being made pursuant to section 234 of the Act of 1959. The steps taken with a view to agreeing the amount of the bond involved contact with the office of the third named Respondent. Eventually a bond in the sum of EUR165,000 was agreed. The parties went back into court at 4.25 p.m. The solicitor for the Appellants made submissions as to why a Detention Order pursuant to section 234 should not be made but these were not accepted by the District Court Judge, the first named Respondent, and an Order was made detaining the vessel and its master, the first named Sppellant, at the port of Killybegs until the proceedings had been

10 adjudicated on by a District Court Judge pursuant to section 4A of the Criminal Procedure Act, 1967 as inserted by s. 9 of the Criminal Justice Act, 1999. The bond in the amount agreed was set in respect of the release of the vessel. The first named Appellant was remanded on bail.

11 On 21st December, 2004, the Applicant applied to the High Court for leave to apply for certiorari by way of judicial review and certain declarations in respect of the Order of 7th December directing the detention of the vessel in question. Only the detention of the vessel pursuant to the order of 7th December is now sought to be impugned.

12 Relevant Provisions of the Fisheries Acts

13 Section 233(1)(g) of the Act of 1959 (as amended) provides as follows:

14 "233. (1) Every sea fisheries protection officer may, for the purpose of enforcing Chapter II of this Part or any instrument made thereunder or for the purpose of enforcing Chapter III of this Part or any order made thereunder, do with respect to any sea-fishing boat within the exclusive fishery limits of the State and (subject to the rules of International Law) outside those limits all or any of the following things:

15 ( g ) if he suspects that there has been a contravention by any person on board the boat of the provisions of Chapter II or III of this Part, he may without summons, warrant or other process

• (i) if the boat is not in a port, take the boat and all persons on board to the nearest or most convenient port, and pending the taking by him of the steps required by section 233A or 234. as may be appropriate, detain the boat and the persons on board, and

• (ii) if the boat is in a port, detain the. boat and the persons on board at that port or take it and them to a more convenient port and there detain it and them, pending (in either case) the taking of the steps aforesaid;".

16 Section 233A of the Act of 1959, as inserted by section

17 12 of the Act of 1978 and as amended by section 11 of the Fisheries (Amendment) Act 1994 provides as follows:

• "(1)Where a sea fisheries protection officer has, in the exercise of the powers conferred on him by section 233, detained a boat and the persons on board the boat at a port, any sea fisheries protection officer who suspects that a person on board the boat has committed an offence under a provision of Chapter II or III of this Part shall (unless he is proceeding under section 234), as soon as may be, apply to a judge of the District Court for an order authorising the continued detention of the boat and those persons, and the said judge may grant an order authorising such detention for a period of 48 hours if he is satisfied that the applicant sea fisheries protection officer has such a suspicion as aforementioned.

• (2) Upon expiration of the period of 48 hours -

  • (a) the boat shall be released unless an Order providing for its further detention has been made under Section 234 before the expiration of the said period of 48 hours and,

  • (b) each person on board the boat shall be released unless an order providing for his further detention has been made under the said section before the expiration of the said period."

18 Section 234 of the Act of 1959, as inserted by section 13 of the Act of 1978 and amended by section 12 of the Fisheries (Amendment) Act 1994, provides as follows:

19 "Where a sea fisheries protection officer has in exercise of the powers conferred on him by section 233 detained a boat and the persons on board the boat at a port, any sea fisheries protection officer shall, as soon as may be, bring the master of the boat and any other persons on board the boat against whom proceedings for an offence under a provision of Chapter II or III of this Part have been or are about to be instituted before a judge of the District Court and thereupon the said judge shall, if he is satisfied that such proceedings have been or are about to be instituted against the master and those other persons or any one or more of

20 them, by order directed to a sea fisheries protection officer require such officer to detain at a specified port in the State the boat and each person (including the master) aforesaid in respect of whom he is so satisfied until such proceedings have been...