Crayden Fishing Company v Sea Fisheries Protection Authority

• Jurisdiction: Ireland
• Judge: O'Donnell J.
• Judgment Date: 12 December 2017
• Neutral Citation: [2017] IESC 74
• Docket Number: 37/16,[S.C. No. 37 of 2016]
• Court: Supreme Court
• Date: 12 December 2017

Between/

CRAYDEN FISHING COMPANY LIMITED

Respondent

AND

SEA FISHERIES PROTECTION AUTHORITY,

THE MINISTER FOR THE MARINE, IRELAND

AND

THE ATTORNEY GENERAL

Appellants

[2017] IESC 74

O'Donnell Donal J.

Clarke C.J.

O'Donnell Donal J.

McKechnie J.

MacMenamin J.

Dunne J.

37/16

SUPREME COURT

Fisheries – Regulation of – Licence for vessel – Points system - European (Common Fisheries Policy) (Point System) Regulations 2014 – Council Regulations (EC) No 1005/2008 & (EC) 1224/2009

Facts: The respondent had been boarded and searched by officers of the first appellant. A large quantity of unrecorded fish was found, giving rise to a possible offence and application of the European (Common Fisheries Policy) (Point System) Regulations 2014. These had been brought into force to give effect to the requirements of Council Regulations (EC) No 1005/2008 & (EC) 1224/2009. The High Court in this case and the related case of O’Sullivan v Sea Fisheries Protection Authority & ors had found that the 2014 Regulations were invalid. Subsequently fresh domestic regulations were introduced which revoked and replaced the 2014 Regulations entirely. The matter now came on appeal in both cases to the Supreme Court (see [2017] IESC 75).

Held by O’Donnell J that the appeal would be dismissed. The Court considered that the appeal was not moot as argued by the respondent given the public importance of the issue in respect of the Constitution and EU Law. The Court reviewed the jurisprudence in respect of fair procedures and stated that the 2014 Regulations did fall short of the requirement for fair procedures. Further, the Court clarified that economic circumstances of the fishing operator were not required to be considered under the 2014 Regulations or the subsequent 2016 Regulations.

Submissions by the parties as to the form of order were invited.

Judgment of O'Donnell J. delivered the 12th December 2017.

1 These proceedings concern the European (Common Fisheries Policy) (Point System) Regulations 2014 ( SI 3 of 2014), which I will refer to as ‘the 2014 Regulations’, and which were the subject matter of proceedings in the companion case of O'Sullivan v Sea Fisheries Protection Authority & ors (O'Sullivan) which was heard at the same time as this case, and in which judgment is also delivered today. This judgment should accordingly be read together with that in O'Sullivan for a full account of the operation of the 2014 Regulations and the legal issues that arose for determination in relation to them in this Court.

2 In the immediate aftermath of the decisions of the High Court in O'Sullivan and in this case, the Minister for Agriculture, Food and the Marine, introduced the European Union (Common Fisheries Policy) (Point System) Regulations 2016 ( SI 125 of 2016) (‘the 2016 Regulations’), which among other things revoked the 2014 Regulations in their entirety. In the light of that fact, the outcome of the O'Sullivan case which, with significant qualifications, upheld the conclusion of the High Court in that case that the 2014 Regulations were invalid, and the detailed account of the Regulations and their background in European law set out in the O'Sullivan judgment, I propose to set out in a relatively compressed form the distinct issues that arise for resolution in this case, and the conclusions I have reached.

3 The respondent to this appeal (‘ Crayden’) is the owner of the vessel ‘ Anders Neel’ and is the holder of a sea fishing licence. On the 2nd of December 2014, sea fishery protection officers (‘SFPOs’) who are officers of the first named appellant the Sea Fisheries Protection Authority (‘SFPA’) boarded the Anders Neel at Ros a Mhil, County Galway, and carried out an inspection. In summary the SFPOs reported that:

‘(i) The Master of the vessel had under-recorded whiting by 126.8% in that there was a more than 18,000 kg discrepancy between the operational estimate and the electronic log book and the landing declaration;

(ii) A large quantity of unboxed fish was found concealed in a compartment behind shuttering in the fish hold. When the SFPOs asked the Master if this fish was additional to the quantities he had recorded in his electronic log book, he replied that it was. The unboxed fish when off loaded was boxed by the Master and his crew and was found to equate to approximately 152 boxes of whiting. Using an average box weight, this was equivalent to 6,829.36 kg of whiting;

(iii) The Master had exceeded the whiting quota for 2014 by 12,336.12 kg between the 1st and 2nd of December 2014.’

These matters if established would constitute a breach of the regime established under the Common Fisheries Policy particularly in relation to illegal unreported and unregulated fishing (‘IUU fishing’) and could be the subject of criminal prosecution of the Master of the vessel. Significantly for present purposes, they could also give rise to a procedure for the allocation of points to the licence held in respect of the vessel, under domestic provisions implementing in Irish law, provisions of Council Regulation (EC) 1224/2009, establishing a Community control system for ensuring compliance with the rules of the Common Fisheries Policy, (‘The Control Regulation’).

4 Subsequently on the 15th of December 2014, Crayden was furnished with a copy of the inspection report. By a further letter of the 19th of January 2015, it was informed by the SFPA that a determination panel for the assignment of points had met on the 16th of January 2015, examined the evidence provided by the SFPOs to assess the gravity of the infringements detected against criteria such as the nature of the damage, its value, the extent of the infringement, and its repetition. It was noted that the panel determined that the infringement was serious in nature. The respondent was accordingly notified that it was proposed to assign 12 points to the licence holder of the sea fishing boats in respect of the infringement. Crayden was also advised that pursuant to the provisions of the 2014 Regulations, it could register an appeal against the assignment of those points to its licence by writing to an appeals officer within 21 days of the receipt of the notice. If no such appeal was brought within that period or any such appeal was brought and subsequently withdrawn the points applicable would be notified to and applied to the licence by the licensing authority.

5 Crayden duly lodged an appeal but before the hearing of that appeal it commenced these proceedings and sought and obtained the stay of the appeal hearing. The essential contention made by Crayden was that a claim had crystallised at that point, and would not be altered by awaiting the outcome of the appeal process. It was argued that the process before the determination panel of the SFPA was required to be carried out in accordance with fair procedures, and that in particular, Crayden had been given no opportunity to make representations on its own behalf or test or challenge the evidence produced by the SFPOs and furthermore reasons had not been given for the decision.

6 In essence the issue between the parties is very clear. The respondents could not, and did not, argue that if fair procedures were required in respect of the proceedings of the determination panel, then that what transpired was in sufficient compliance with that principle. Instead they sought to take their stand at an earlier point, and challenged the assumption that fair procedures were required in respect of the proceedings of the determination panel, taken in isolation. It was argued that the question of fair procedures depended upon all the facts and circumstances of the case. It was a matter of substance rather than form, and the nomenclature used was irrelevant, or at least secondary. Accordingly, it was argued that since the 2014 Regulations provided that nothing could happen to Crayden (or any other licensee) and in particular that no points could be allocated as a result of the determination panel proceedings unless the licensee choose not to appeal, or if the appeal was withdrawn or dismissed, then the proceedings should properly be viewed as part of a single unitary process. If so, fair procedures were provided in relation to the decision of the appeals officer. Analysed in this way, fair procedures were provided before any points were attached to the licence in fact, and before any adverse consequence was suffered by the licence holder. This was all that natural justice required. The State authorities argued therefore that this case should be approached in the same way as the decision of the High Court in Gammell v Dublin County Council [1983] ILRM 413, and McNamee v Revenue Commissioners [2012] IEHC 500 (subsequently affirmed in this Court [2016] IESC 33). Crayden for its part countered by contending that the case should be viewed as two distinct processes of a first instance determination and appeal each of which was required to be conducted in accordance with fair procedures which in this case meant that the licensee should have been given the opportunity of making submissions to the determination panel of the SFPA. The case was therefore, if anything, comparable to O'Ceallaigh v An Bord Altranais [2000] 4 IR 54, and Dellway Investments Limited & ors v National Asset Management Agency & ors [2011] 4 IR 1.

7 The judgment of the High Court (O'Malley J) concluded that the proceedings before the determination panel did require fair procedures and at a minimum the right to make representations and to have reasons for the decision. The High Court also observed in passing that it appeared that the decision of the determination panel was also flawed because it had not considered the economic circumstances of the operator as provided for by Article 90 of the Control Regulations: Council Regulation (EC No. 1224 of 2009) of the 20th of November 2009.

8 In this appeal it is...