Director of Public Prosecutions v Meijvogel

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 26 April 2024
• Neutral Citation: [2024] IECA 106
• Court: Court of Appeal (Ireland)
• Docket Number: Record No: 214/2015

The Director of Public Prosecutions

Respondent

and

Klass Dirk Meijvogel

Appellant

[2024] IECA 106

Birmingham P.

Edwards J.

Kennedy J.

Record No: 214/2015

THE COURT OF APPEAL

JUDGMENT of the Court delivered by Mr Justice Edwards on the 26th of April 2024.

Introduction

1 This is an appeal against severity of sentence, and this judgment deals with the re-sentencing of the appellant in circumstances where we have previously identified an error of principle by the sentencing court at first instance and have quashed the sentence imposed at first instance.

Background to the Matter

2 The background to this matter is fully set out in two previous judgements of this Court, viz., the judgment of Birmingham P delivered on the 11th of October 2018 on behalf of the Court rejecting the appellant's appeal against his conviction – see The People (DPP) v Meijvogel [2018] IECA 317; and the interim judgment of this Court, delivered by Edwards J., on 25th of July 2023 in respect of his appeal against the severity of his sentencing — see The People (DPP) v Meijvogel [2023] IECA 214, following two references by this Court to the Court of Justice of the European Union (“CJEU”). See in that regard the judgment of the CJEU (Sixth chamber) in KM ( Sanctions imposed on the master of a vessel), Case C-77/20, dated the 11th of February 2021 (“ KM No 1”) and the reasoned order of the CJEU (Eighth Chamber) in KM v Director of Public Prosecutions, Case C-493/21, dated the 1st of March 2022 (“ KM No 2”). This judgment is to be read in conjunction with the two previous judgments of this court, and both the judgment and reasoned order of the CJEU, just referenced.

3 The appellant is the master of a sea fishing vessel who was convicted by a jury at Cork Circuit Criminal Court on the 16th of June 2015 of the offence of carrying on board a sea fishing vessel within the exclusive fishery limits of the state equipment prohibited by Article 32(1) of Council Regulation (EC) No 850/98 in contravention of Statutory Instrument number 197 of 2013 (SI 197/13), contrary to section 14 of the Sea Fisheries Maritime Jurisdiction Act 2006 (“the Act of 2006”).

4 The offending conduct in respect of which the appellant faced sentencing was particularised on the indictment as follows:

“Klass Dirk Meijvogel on the 11th of February 2015 was the master of the UK registered fishing vessel ‘Wiron 5’ having registration number PH – 1100, when the said vessel then carried on board equipment capable of grading by size, Herring, Mackerel or Horse Mackerel automatically, and when such equipment was not installed or located on the said fishing vessel in such a way as to ensure immediate freezing or to prevent the return of marine organisms to the sea”.

5 The appellant was sentenced on the 27th of July 2015 to a fine of €500, together with confiscation of his catch to the value of €344,960, and the fishing gear on board his vessel (both prohibited and legal) to the value of €55,000. The confiscation of the appellant's catch and gear was ordered in circumstances where it was believed by all concerned (i.e., both prosecution and defence lawyers) to arise as a statutory consequence of the appellant's conviction leading to the sentencing court being informed that it had no discretion in regard to the extent of any order for the confiscation of catch and gear. The appellant has appealed against the severity of the sentence imposed upon him and the focus of the appeal has been on the confiscation order, with the appellant contending that it was a disproportionate penalty in all the circumstances of the case, was unlawful under European Union (“EU”) law on that account and ought not have been imposed.

6 In this Court's judgment of the 25th of July 2023 we found that the appellant had demonstrated an error of principle on the part of the sentencing court at first instance. We concluded that the sentencing judge at first instance had incorrectly approached sentencing on the basis that he had absolutely no discretion with respect to whether or not to impose a mandatory forfeiture of all of the appellant's catch and fishing gear in sentencing him for the offence of which he had been convicted at trial. We observed:

“It is now clear, however, that he was obliged by virtue of Article 89 of the 2009 Control Regulation, a directly effective provision of EU law, to be read in the light of Article 49(3) of the Charter, to assess whether, in relation to the infringement committed, including its seriousness, the mandatory forfeiture of all catch and all fishing gear found on board the vessel concerned was proportionate to the attainment of the objective legitimately pursued by the prohibition laid down in Article 32(1) of Council Regulation (EC) No 850/98, relating to grading equipment, and to examine, if necessary, the need to adjust, modulate or mitigate the extent of the forfeiture order in respect of the catch and the fishing gear”.

7 We went on to say that the question that then arose for consideration was whether the error of principle that we had identified had led, or may have led to, the imposition of an incorrect sentence, and if so, whether it was appropriate that we should quash the sentence imposed by the court below.

8 While noting that the CJEU had not found that s. 28(5)(b) of the Act of 2006 was necessarily incompatible with Article 89 of Council Regulation (EC) No 1224/2009, of the 20th of November 2009, establishing a Community control system for ensuring compliance with the rules of the common fisheries policy (“the 2009 Control Regulation”), the CJEU had held that a national court concerned now with that issue must seek to verify, using the helpful criteria specified by the CJEU in KM No 1 and KM No 2, whether the measures which it is being asked to apply are effective, proportionate and dissuasive.

9 We had invited submissions from the parties on that issue and were satisfied that it was at least arguable that s. 28(5)(b) of the Act of 2006 goes beyond what was necessary such that it was disproportionate to the legitimate aims being pursued by relevant EU legislation.

Without deciding on the proportionality issue at that point, we indicated that we were sufficiently concerned about it to be able to say that the legal error into which the sentencing judge was inadvertently led was by no means therefore an inconsequential one. That being so, and having regard to a real possibility that a disproportionate sentence may have been imposed upon, and a consequential injustice done to, the appellant, we found it appropriate to quash the sentence imposed by the court below. In order to do so we did not find it necessary to make an order disapplying s. 28(5)(b) of the Act of 2006, and we expressed the view that in the absence of an actual finding of its incompatibility with Article 89 of the 2009 Control Regulation and Article 49(3) of the Charter it would be inappropriate to make a disapplication order at that point.

10 Having quashed the sentence imposed by the sentencing court at first instance, it was then incumbent on this Court to re-sentence the appellant. We recognised that in doing so, we were required to impose a sanction that is effective, proportionate and dissuasive.

11 The choice of sanctions has been left by the EU legislation to the discretion of the Member States. The provision in Irish law which provides for possible sanctions is s. 28 of the Act of 2006. It provides both for a fine of up to €35,000 in the present case and, pursuant to subsection 5(b) thereof, for the mandatory forfeiture of all or any catches or fishing gear found on the boat to which the offence relates. It must be applied by us in re-sentencing unless, having carried out the verifications and the proportionality assessment commended as being necessary by the CJEU in KM No 1 and KM No 2, we conclude that in order to be compliant with Article 89 of the 2009 Control Regulation and Article 49(3) of the Charter there is a need to adjust, modulate or mitigate the extent of the proposed s. 28(5)(b) forfeiture order in respect of the catch and the fishing gear. In order to effect any such adjustment, modulation or mitigation it would be necessary at that point to disapply s. 28(5)(b) of the Act of 2006 to the extent that it requires mandatory forfeiture of all or any catches or fishing gear found on the boat to which the offence relates, and for the re-sentencing court to limit the extent of any proposed forfeiture of catch and fishing gear to what it considered was necessary to provide for a sanction that does not go beyond what is necessary in order to attain objectives legitimately pursued by the relevant legislation, but which at the same time is effective, proportionate and dissuasive. We acknowledged in our judgment of the 25th of July 2023 that in re-sentencing the appellant we would further be required to bear in mind the nature of the infringement, including its seriousness, and possible impacts on the appellant as regards his legitimate right to exercise his profession and to earn a livelihood.

12 In our judgment of the 25th of July 2023 we expressed the view that in the interests of justice the parties should be permitted in the context of any re-sentencing hearing to adduce such further evidence which they considered might be relevant to the issue of the proportionality of any forfeiture of catch and fishing gear, or that the Court might need more generally for the purposes of arriving at a just and proportionate overall sentence.

13 Without intending to be prescriptive, we opined that such evidence could encompass from the appellant's side (i) the overall value of all and any fishing gear found on the boat to which the offence relates; (ii) the value of prohibited or non-compliant fishing gear found on the boat to which the offence relates; (iii) evidence concerning the appellant's employment and...