O'Connor v DPP
|Mr. Justice Sheehan
|20 March 2017
| IECA 101
|20 March 2017
|Court of Appeal (Ireland)
|[C.A. No. 193 of 2016],Neutral Citation Number:  IECA 101 2016 193
 IECA 101
Neutral Citation Number:  IECA 101
THE COURT OF APPEAL
Criminal sanctions – Illegal turf cutting – Prohibition – Appellant seeking orders of prohibition and declaratory relief in respect of the prosecution pending against him for cutting turf in a Special Area of Conservation – Whether respondent was entitled to create by way of regulation the indictable offence which the appellant faced
Facts: The appellant, Mr McCarthy, was a machine operator from Killbaha, Moyvane, County Kerry who was charged with illegal turf cutting at Moanveanlagh Bog in County Kerry on 20th May, 2012 contrary to s. 35(1)(b) and s. 67(2) of the European Communities (Birds and Natural Habitats) Regulations, 2011. He worked for the first named plaintiff in the proceedings, Mr O'Connor. The appellant appealed to the Court of Appeal against the judgment (25th August, 2015) and order (15th October, 2015) of the High Court (O'Malley J) in which reliefs sought by the appellant were refused. The proceedings concerned a challenge to the creation of criminal sanctions by statutory instrument for the purpose of giving effect to obligations arising from a European Union Directive. The appellant sought orders of prohibition and declaratory relief in respect of the prosecution pending against him for cutting turf in a Special Area of Conservation (SAC). The appellant submitted that in the circumstances of this case the third respondent, the Minister for Arts, Heritage and the Gaeltacht, was obliged to introduce primary legislation to give effect to Council Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora as amended (the Habitats Directive) as there was nothing in the Habitats Directive which says there should be criminal sanctions. The appellant maintained that it must be clear as a matter of principle or policy from the Directive that criminal sanctions were required by the Directive. The appellant maintained that he could find support for his position from the fact that certain other Directives contain criminal sanctions, for example the Waste Directive and the Water Framework Directive. In addition he also submitted that Council Directive 2008/99/EEC on the Protection of the Environment through criminal law suggests that criminal sanctions were explicitly excluded from the Habitats Directive in the first place. According to the appellant the reasonable conclusion to draw from the 2008 Directive is that the Habitats Directive did not require criminal sanction.
Held by the Court that the issue in this appeal was whether or not Minister was entitled to create by way of regulation the indictable offence which the appellant faced. The Court held that the regulations made by the Minister on foot of which the appellant faced trial on indictment fall into neither of two broad categories of cases referred to by Keane CJ in Maher v The Minister for Agriculture  2 IR 139 in which a regulation made in purported exercise of the powers conferred by s. 3 of the European Communities Act 1972 might be found to be ultra vires the powers conferred on ministers by s. 3. Accordingly the Court held that the Minister acted intra vires when creating the indictable offence which is a necessary and proportionate measure required to ensure the proper implementation of the Directive.
The Court held that the appeal should be dismissed.
This is an appeal against the judgment (25th August, 2015) and order (15th October, 2015) of the High Court (O'Malley J.) in which reliefs sought by the appellant Christopher McCarthy were refused. The proceedings concerned a challenge to the creation of criminal sanctions by statutory instrument for the purpose of giving effect to obligations arising from a European Union Directive. The appellant sought orders of prohibition and declaratory relief in respect of a prosecution pending against him for cutting turf in a Special Area of Conservation (SAC). The issue in this appeal is whether or not the Minister was entitled to create by way of regulation the indictable offence which the appellant faces.
The appellant is a machine operator from Killbaha, Moyvane, County Kerry who is charged with illegal turf cutting at Moanveanlagh Bog in County Kerry on 20th May, 2012 contrary to s. 35(1)(b) and s. 67(2) of the European Communities (Birds and Natural Habitats) Regulations, 2011. He works for a Mr. John O'Connor who is the first named plaintiff in these proceedings but not an appellant before us. The appellant is presently facing trial before the Circuit Criminal Court in Tralee. He was served with the 'book of evidence' prior to his return for trial to the Circuit Criminal Court in Tralee on 23rd July, 2013. The trial has been adjourned from time to time pending the outcome of these proceedings. Part of the proposed prosecution case against the appellant is that he was observed operating turf cutting machinery at Moanveanlagh Bog on the relevant date. In the course of his grounding affidavit in these proceedings he avers inter alia that Moanveanlagh Bog is one from which various families living on or near the bog have taken turf over many generations and says that he understands these owners continue to assert their turbary rights over the said bog.
Moanveanlagh Bog comprises an area of 230 hectares, six km east of Listowel and is a site which comprises a raised bog that includes both areas of high bog and cutover bog. It is significant in terms of its geographical location being at the extreme south western range of raised bogs in Ireland. It is a site of considerable environmental and conservation significance as it comprises a raised bog, a rare habitat in the European Union and one that is increasingly scarce and under threat in Ireland. The site supports a good diversity of raised bog micro habitats including flushes.
In accordance with Council Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora as amended ('The Habitats Directive'), member states were required as a matter of Union law to take appropriate steps to avoid the deterioration of natural habitats in Special Areas of Conservation. Accordingly Ireland is required to take all measures necessary to guarantee the application and effectiveness of 'the Habitats Directive'.
An affidavit filed on behalf of the third named respondent James Ryan states that within government services he is the Irish national expert on raised bog conservation and restoration. He explains in the course of his affidavit how turf cutting and its associated activities damage the integrity of the SAC and are therefore in conflict with the raised bog conservation objective of these sites. He summarises the extent of this problem at para. 15 of his affidavit where he states:
'Currently only approximately 50,000 hectares of intact high bog remain in the country out of an original figure of 310,000 hectares estimated in 1979. 18,000 hectares of the intact high bog are within designated sites and only 1,639 of the intact high bog can now be classified as active raised bog. Of the remaining non active bog in the SACs only 11% is now considered to have significant potential for restoration. This means that even after restoration is completed and a long period of recovery is concluded only 23% of the high bog in the Special Areas of Conservation will be preserved.'
Regarding the importance of Moanveanlagh Bog he states at para. 17 of his affidavit:
'I say and believe that Moanveanlagh Bog is significant because it is the largest and one of the best remaining examples of a raised bog in the south west of the country. It is accordingly of particular importance for the range of habitats in Ireland and in Europe.
In addition it is also unusual as it has developed on Namurian shales and grits unlike most Irish raised bogs which overlie limestone. It supports examples of the Annex 1 habitats active raised bog, degraded raised bog and Rhynchosporion vegetation. The first habitat is a priority habitat which is in danger of disappearance in the EU and which requires special protective measures.'
And at paras. 18 and 19 he states as follows:
'18. The remaining area of high bog in Moanveanlagh is now approximately 35% of its original size ... I say and believe that turf cutting and associated drainage has caused a major decrease in the area of uncut bog from 333 hectares to 117 hectares and of active bog from 333 hectares to 4.6 hectares. Even after restoration works and a long recovery period the best that could be achieved is less than 20 hectares of active bog. I say and believe that if activities which encourage subsidence such as cutting and drainage occur this will further destabilise the topography of the bog and threaten the remnants of active bog. This would give rise to a very unstable and undesirable situation.
19. I say that the most recent monitoring assessment in 2013 gives this bog an unfavourable bad – declining assessment, the lowest ranking possible. I say that this is because the future prospects of the bog are poor due to the continuation of impacting activities such as peat cutting, drainage and the spread of an invasive species. Both the area and quality of the active bog are considered to be well below the level where the site could be considered to be in a favourable conservation condition. I say and believe that it is essential that cutting is stopped and restoration initiated as soon...
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