Crayden Fishing Company Ltd v Sea Fisheries Protection Authority
| Jurisdiction | Ireland |
| Judge | Ms. Justice Iseult O'Malley |
| Judgment Date | 26 January 2016 |
| Neutral Citation | [2016] IEHC 30 |
| Court | High Court |
| Docket Number | [2015 No. 98 JR] |
| Date | 26 January 2016 |
[2016] IEHC 30
[2015 No. 98 JR]
THE HIGH COURT
JUDICIAL REVIEW
Fisheries – S. 3 of the European Communities Act 1972 – European Union (Common Fisheries Policy) (Point System) Regulations 2014 – Imposition of penalty points – Breach of fair procedures – Audi alteram partem – Council reg. (EC) No. 1224/2009 – Reg. (EU) No 404/2011 – Council reg. (EC) No. 1005/2008
Facts: Following the imposition of maximum penalty points by the respondent on the fishing licence of the applicant, a fishing company for recording and reporting fish catch in violation of the Fishing Regulations, the applicant now sought an order of certiorari for setting aside the decision of the determination panel established by the respondent and a declaration that the imposition of said penalty points was contrary to principles of natural justice as the said decision was made without giving an opportunity of hearing to the applicant. The respondent alleged that the procedure established under the European Union (Common Fisheries Policy) (Point System) Regulations 2014 for ensuring control and compliance of fishing legislation, which provided for facts findings, decision by a determination panel and right to appeal, was a single and unified process without any right of being heard by the applicant.
Ms. Justice Iseult O'Malley granted a declaration that the manner in which the respondent had assigned maximum penalty points to the applicant's fishing licence was contrary to fair procedures. The Court held that both the reg. (EU) No. 404/2011 for conduction of inspections and obligations of officials completing an inspection report and council reg. (EC) No. 1224/2009 for ensuring compliance with the rules of common fisheries policies did not deny the right to natural justice. The Court observed that the fisheries regulations merely assigned the function of fact finding to the respondent by way of making an inspection report while meeting the criteria set out under art. 3(2) of the council reg. (EC) No. 1005/2008. The Court observed that it was essential to inform the license holder that the alleged infringements which were found upon inspection by the respondent would be assessed on evidence by a competitive panel for imposition of penalty points while giving him an opportunity to make representations. The Court opined that the determination panel in line with the administrative bodies must give reasoned decision so that the applicant would be in a position to know whether to lodge an appeal or not against an unfavourable decision.
EU legislation concerning the common fisheries policy requires Member States to operate a penalty point system dealing with serious infringements of certain fisheries Regulations. In this jurisdiction the system is provided for by the European Union (Common Fisheries Policy) (Point System) Regulations 2014 ( S.I. 3 of 2014), made by the first named notice party pursuant to the powers conferred by s.3 of the European Communities Act 1972. The respondent (also referred to here as ‘the SFPA’, or ‘the Authority’) is the body charged with implementing the points scheme.
The applicant, a fishing company, claims in these proceedings that it was subjected to unfair procedures under the Regulations. In particular, it complains that a decision by the respondent, to impose the maximum allowable number of penalty points on its fishing licence, was made in the absence of any opportunity to be heard. It also asserts that the decision does not record any consideration of evidence or any finding as to the actual occurrence of the alleged infringements, and that no adequate reasons were given for the decision.
While the Regulations provide a right of appeal, and in this instance an appeals officer had decided before the institution of these proceedings to hold an oral hearing, an appellant can succeed only by satisfying the appeals officer on the balance of probabilities that it is not liable for an infringement, or that the infringement was not serious. The applicant does not take issue with the appeal system set out in the Regulations but claims that the availability of an appeal of this nature does not remedy the flaws in the original decision.
There is no challenge in these proceedings to the legal validity of the Regulations by reference to the power of the Minister to make them, but the applicant seeks a declaration that the procedures prescribed therein are contrary to natural and constitutional justice. There is a plea in the statement of grounds that the Regulations are ‘ void for uncertainty’ but no relief is claimed in this respect and it was not addressed at the hearing.
The fourth named notice party is a barrister and is the appeals officer designated under the Regulations to hear the applicant's appeal. The matter did not reach the stage of an appeal hearing and no complaint is made of any conduct on his part.
The applicant is a limited company and is the owner of a fishing vessel, the Anders Nees. On the 2nd December, 2014, the Anders Nees returned to port after a fishing voyage. The vessel was inspected by Sea Fisheries Protection Officers (‘SFPOs’), and as a result of what was found its master was interviewed under caution.
In a statement made a few days later, the SFPO in charge of the inspection, Ms. Nic Dhonnchadha, recounted what had been discovered on the vessel. The master had stated that his electronic logbook was up to date. However, when steel shuttering in the fish hold was removed by the SFPOs a large quantity of unboxed fish was found in a compartment behind it. The master admitted that this fish was additional to what had been recorded in the electronic logbook. The catch was landed and examined, and it was said to be clear that the master had under recorded the whiting catch by 126.8% and had over recorded all other species. He had exceeded the December quota for whiting in the first two days of that month.
Ms. Nic Dhonnchadha said in her statement that she deemed these breaches to be serious infringements of the rules, specifically those relating to the recording and reporting of the catch, and to the obstruction of the work of officials. The obstruction was said to relate to the initial statement by the master about the logbook and to the concealment of unrecorded fish.
The master was quoted as having said, under caution, that he had not expected to get so much fish so quickly and that he had been trying to spare some quota for the following week.
Under cover of a letter dated the 15th December, 2014, the applicant received a copy of Ms. Nic Dhonnchada's report relating to the inspection of the 2nd December, 2014. Under the heading ‘ Infringements or Observations’ the report lists, as six separate matters, the following:
a) The weight of a number of named species of fish was outside the permitted 10% tolerance, contrary to EC 1224/2009 Title IV, Chapter 1, Section 1, Article 14(3). (This relates to the difference between the recorded and actual weights.)
b) The obligation to record and report catch or catch related data, including data to be transmitted by satellite vessel monitoring system, had not been fulfilled, contrary to Article 90 paragraph 1 of the Control Regulation in conjunction with Article 42 paragraph 1(a) and Article 3 paragraph 1(b) of Regulation (EC) No 1005/2008.
c) Obstruction of work of officials or of observers in the exercise of their duties by failing to record all of catch onboard – the reference is the same as at a) above.
d) Exceeding the whiting quota under Fisheries Management Notice No. 54 of 2014 (made under s. 12 of the Sea Fisheries and Maritime Jurisdiction Act 2006).
e) Not recording the catches of four named species separately as required by Fisheries Management Notice No. 50 of 2014.
f) Not recording the catches of the same four species separately as required by Fisheries Management Notice No. 54 of 2014.
g) The equivalent of 152 boxes of fish found stored in the forward section of the hold, behind shuttering, that had not been boxed and had not been recorded in the operations section of the electronic logbook.
The same (or almost the same) list appears under the heading ‘ Inspector's comments’. The final heading is ‘ Action Taken’, where the note is ‘ Preparation of Case File’.
Neither the covering letter nor the report itself made any reference to any contemplated action in respect of these alleged infringements. No submissions or comments were invited from the applicant.
On the 19th January, 2015, the legal case management unit of the SFPA wrote a letter to the applicant headed ‘Alleged Serious Infringements’. Three items described as ‘ alleged infringements’ were set out as follows:
‘1. Not fulfilling of obligations to record and report catch or catch related data, including data to be transmitted by satellite vessel monitoring system under Annex XXX(1) of EU 404/2011 in that the master Mr. Michael Harrington under recorded whiting by 126.8%. Specifically, there was an 18084.12kg discrepancy between the operational estimate in the electronic logbook and the landing declaration. A liability of 3 points is attributed to this infringement.
2. Concealing, tampering or disposal of evidence relating to an investigation under Annex XXX(4) of EU 404/2011 in that 152 boxes of whiting were found to have been concealed in the fish hold. Using the average box weight, this is equivalent to 6829.36kg of whiting. A liability of 5 points is attributed to this serious infringement.
3. Fishing in a closed...
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O'Sullivan v The Sea Fisheries Protection Authority
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