O'Connor & McCarthy v DPP and Others

JurisdictionIreland
JudgeMs. Justice Iseult O'Malley
Judgment Date25 August 2015
Neutral Citation[2015] IEHC 558
Docket Number[2014 No. 151 JR]
CourtHigh Court
Date25 August 2015

[2015] IEHC 558

THE HIGH COURT

[Record No. 151 JR/2014]
O'Connor & McCarthy v DPP & Ors
JUDICIAL REVIEW
BETWEEN/
JOHN O'CONNOR AND CHRISTOPHER MCCARTHY
APPLICANTS

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS, THE CIRCUIT COURT JUDGE FOR THE TIME BEING ASSIGNED TO THE SOUTH-WESTERN CIRCUIT, THE MINISTER FOR ARTS, HERITAGE AND THE GAELTACHT, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

Environment – Reg. 35 (1) of the European Communities – (Birds and Natural Habitats) Regulations, 2011 – Council Directive 92/43/EEC – S. 2 of the European Communities Act, 1972 – Turbary rights in bog – Whether the Minister had powers to create indictable offence for turf cutting in absence of primary legislation

Facts: The applicants sought orders of prohibition and declaratory relief in relation to their prosecutions for turf cutting by machine in a special area of conservation. The applicants contended that the Council Directive 92/43/EEC (Habitats Directive) did not require the member state to create an offence for the purpose of transposing the Directive into national law. The respondents alleged that under art. 4 (3) of the Treaty of the European Union, the State of Ireland was obliged to take appropriate measures to ensure compliance of the provisions of the Treaties. The respondents contended that the criminal sanctions became necessary to achieve the desired results as envisaged under the Habitats Directive.

Ms. Justice Iseult O'Malley refused to grant orders of prohibition and declaratory reliefs to the applicants. The Court held that though there were no clear provisions for imposing criminal sanctions under reg. 35 (1) of the European Communities - (Birds and Natural Habitats) Regulations, 2011, yet the third named respondent had powers under s. 2 of the European Communities Act, 1972 to make orders for giving effect to relevant Council Regulation. The Court found that the Habitats Directive had been in existence for twenty years and the State had tried to halt the turf-cutting practice through persuasion and/or compensation, failing which there arose the need to introduce criminal sanctions. The Court held that the directives left it upon the member states to adopt methods for implementation and there was nothing to suggest that criminal sanctions could not be created unless the primary legislation called for it.

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JUDGMENT of Ms. Justice Iseult O'Malley delivered the 25th day of August 2015

Introduction
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1. In these proceedings the applicants seek orders of prohibition and declaratory relief in respect of prosecutions pending against them for cutting turf by machine in a Special Area of Conservation.

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2. In summary, the applicants contend that the regulations creating the offence with which they are charged are unconstitutional and ultra vires the third named respondent ("the Minister"), because it has been created by way of a statutory instrument rather than by primary legislation. In so far as the respondents maintain that the regulations are necessitated by Ireland's membership of the European Union and by EU legislation, the applicants say that the creation of an indictable offence in this manner was not "necessary" for the purpose of giving full effect to the relevant Directive and was not, as required by law, grounded upon proper considerations of effectiveness, proportionality and deterrence.

The offence charged
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3. Each of the applicants is charged as follows:

"That you the above named accused [...] did on the 20 th May, 2012 at Moanveanlagh Bog, Co. Kerry a European site in said District Court area of Listowel, without lawful authority use an object to wit machinery for the extraction or mining of natural resources including turf or peat where such use on the European site of such object was likely to have a significant effect on or adversely affect the integrity of the European site. "

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Contrary to Section 35(1)(b) and Section 67(2) of the European Communities (Birds and Natural Habitat) Regulations 2011."

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4. The charges are brought in the name of the first named respondent.

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5. According to the applicants' affidavits they were charged on the 10 th July, 2013, but the matter first came before the District Court on the 9 th May, 2013. On the 23 rd July, 2013, the applicants were sent forward to the Circuit Court for trial on indictment. There is obviously some problem with the dates here but nothing appears to turn on that.

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6. Leave to seek judicial review was granted (by Peart J.) on the 10 th March, 2014.

The regulations
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7. The offence with which the applicants are charged is created by regulation 35(1) of the European Communities (Birds and Natural Habitats) Regulations, 2011 ( S.I. 477/2011), which provides as follows:

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2 "35. (1) A person who, without lawful authority-

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(a) carries out, on land within or outside a European site, any plan or project or activity that may have a significant effect on, or adversely effect the integrity of, a European Site,

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or

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(b) enters or occupies any European Site, or brings onto or places or uses or releases in any European Site any animal or object, including but not limited to-

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(i) any off-road vehicle, recreational water craft, plant and equipment, tractor or engine,

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(ii) machinery for the extraction or mining of natural resources including, but not limited to trees, vegetation, minerals, rock, soil, gravel, sand, turf or peat, where such action or the use or presence on the European Site of such an animal or object is likely to have a significant effect on, or adversely affect the integrity of, a European Site,

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Shall be guilty of an offence.

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8. By virtue of regulation 35(2) it is a defence to prove that the accused took all reasonable steps and exercised all due diligence to avoid committing the offence.

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9. It is not disputed that Moanveanlagh Bog, a raised bog which has been designated as a Special Area of Conservation, comes within the definition of a "European site" set out in the regulations.

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10. Regulation 67 (2) provides that a person who commits an offence under regulation 35(1) is liable

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a "(a) on summary conviction, to a Class A fine or imprisonment for a term not exceeding six months, or both, or

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(b) on conviction on indictment, to a fine not exceeding €500,000, or imprisonment for a term not exceeding three years, or both."

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11. A court imposing sentence is obliged, pursuant to regulation 67(3), to have regard in particular

"...to the risk or extent of injury to the environment arising from the act or omission constituting the offence, and to the polluter pays principle."

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12. The 2011 regulations are stated in the preamble to have been made by the Minister for Arts, Heritage and the Gaeltacht

"[I]n exercise of the powers conferred on me by section 3 of the Act of 1972 and for the purpose of giving effect to Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 (which codifies Council Directive 79/409/EEC of 2 April 1979 (as amended)) and Council Directive 92/43 EEC of 21 May 1992 [as amended by various measures related to the accession of Member States]".

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13. The regulations came into operation on the 21 st September, 2011.

The Directives
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14. Council Directive 92/43/EEC of 21 May 1992, on the conservation of natural habitats and of wild fauna and flora, is by now well known as the Habitats Directive. Its objective is described in Article 2, which reads in full as follows:

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2 "(1) The aim of this Directive shall be to contribute towards ensuring biodiversity through the conservation of natural habitats and of wild fauna and flora in the European territory of the Member Slates to which the Treaty applies."

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(2) Measures taken pursuant to this Directive shall be designed to maintain or restore, at favourable conservation status, natural habitats and species of wild fauna and flora of community interest.

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(3) Measures taken pursuant to this Directive shall take account of economic, social and cultural requirements and regional and local characteristics."

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15. The Directive provides for the establishment of the Natura 2000 network. This is composed of special areas of conservation designated by reference to the lists of habitats annexed to the text of the Directive. Raised bogs are included in the annex. Each Member State is obliged to propose and transmit lists of sites for designation.

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16. Article 6 deals with the measures to be taken by Member States. As far as this case is concerned, the relevant sub-articles are (1) and (2).

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2 "(1) For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the site.

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(2) Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive."

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17. Article 23(1) obliged Member States to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive within two years of its notification.

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18. Article 23(2) stipulates that when such measures are adopted, they shall contain a reference to the Directive or be accompanied by such reference on the occasion of their official publication.

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19. Directive...

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