DPP v Plug

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 29 July 2016
• Neutral Citation: [2016] IECA 236
• Docket Number: Appeal No.: 113/2015
• Court: Court of Appeal (Ireland)
• Date: 29 July 2016

[2016] IECA 236

THE COURT OF APPEAL

Mahon J.

Appeal No.: 113/2015

Sheehan J.

Mahon J.

Edwards J.

The People at the suit of the Director of Public Prosecutions

Respondent

- and -

Gerrit Plug

Appellant

Crime & sentencing – Fisheries – Conviction on three counts – Appeal by Netherlands national

Facts: The appellant had been convicted on three counts of offences relating to sea fisheries, following his vessel having been boarded by the Naval Service. He now appealed his conviction.

Held by Mr Justice Mahon, the other Justices concurring, that the appeal would be dismissed. The trial involved substantive consideration of EU regulations, and the application of said provisions to the facts. The Court was satisfied that the trial judge had conducted the trial fairly, and had left matters to the jury appropriately.

Judgment of the Court delivered on the 29th day of July 2016 by Mr. Justice Mahon

1 The appellant, who is a citizen of the Netherlands, was convicted at the Circuit Criminal Court sitting in Letterkenny in Co. Donegal on 27th March 2015, of three counts from a six count indictment, and has appealed against those convictions. They are as follows:-

• Count No. 1:

Failing to record all estimated discards above 50 Kg. of live weight equivalent in the vessels' log book in contravention of Article 14.4 of the Council Regulations (EEC) No. 2233/2009, and contrary to S.I. 320/2012 and s. 14 of the Sea Fisheries and Maritime Jurisdiction Act 2006.

• Count No. 3:

Discarding species subject to quota during fishing operations in contravention of Article 19 of the Council Regulations (EEC) No. 850/98 as inserted by Article 1 of Regulation (EU) 227/2013 of the European Parliament and of the Council and contrary to Sea Fisheries (Technical Measures) Regulations 2013 ( S.I. No. 197/2013) and s. 14 of the Sea Fisheries and Maritime Jurisdiction Act 2006.

• Count No. 5:

Exceeding the maximum allowed space between bars in the water separators of a pelagic vessel targeting mackerel, herring or horse mackerel as prohibited by Article 32.(a) of Council Regulations (EEC) No. 850/98 as inserted by Article 1(15)(i) of Regulation (EU) 227/2013 of the European Parliament and of the Council contrary to the Sea Fisheries (Technical Measures) Regulations 2013 ( S.I. No. 197/2013) and s. 14 of the Sea Fisheries and Maritime Jurisdiction Act 2006.

2 Count no. 2 was the subject of a Nolle Prosequi. Directions were given in relation to counts no. 4 and 6. Sentences in fines of €35,000 in respect of each of the three counts were imposed.

General background

3 The appellant is the Master of the sea fishing vessel 'Annelies Ilena' (registration number KW174). On 22nd November 2013 the appellant's vessel was boarded by naval officers and sea fisheries protection officers ('SFPO') from the Irish Naval Service vessel, L.E. Roisin, which was on routine patrol in seas off County Donegal. The vessel is presently registered in the Netherlands, but was previously registered in Ireland when it was known as 'Atlantic Dawn'. On boarding the vessel, the officers established that the appellant's vessel had been fishing since 8th October 2013, and that there were no discarded fish ('discards') recorded in the log book since that date. The appellant was directed to update his log book in accordance with Art. 47(1)(d) of the Implementing Regulations (Council Regulations) (EU) No. 404/2011. The appellant indicated that there was no discards and none were recorded. An inspection established that there were in fact discards, weighing 53.04 Kg. and which by reason of their weight were required to be recorded in the logbook. The failure to so record these discards in the log book is the basis for count no. 1.

4 Count no. 3 relates to the alleged unlawful discarding of fish subject to quota, namely mackerel and horse mackerel in the course of fishing operations.

5 Count no. 5 concerns the space between bars in the vessel's water separator. It was alleged that that a number of spaces exceeded the permitted measurement thereby allowing larger fish be discarded into the sea in circumstances where such fish ought to have been retained on board the vessel. The issue in relation to this count concerns the date on which the separators were examined and the spaces measured. That inspection and measurement took place on 24th November 2013, in circumstances where the vessel had been boarded and placed under detention on 22nd November 2013, and had been detained at Killybegs Port between that date, and 24th November 2013.

Count No. 1

6 Count no. 1 concerns a contravention of Art. 14.4 of the Council's Regulations (EEC) No. 1224/2009, and an offence contrary to the Sea Fisheries (Community Control System) Regulations 2012 ( S.I. No. 320 of 2012) and s. 14 of the Sea Fisheries and Maritime Jurisdiction Act 2006. Section 14(1) of the Act of 2006 empowered the relevant Minister to make regulations prescribing measures to give effect to treaties governing the European Communities or Community law relating to the E.U.'s Common Fisheries policy. Section 14(2) of the Act of 2006 identifies the matters in respect of which Regulations may be enacted and s. 14(3) provides for the commission of an offence where any regulation enacted pursuant to the Act of 2006 is breached.

7 The Sea Fisheries (Community Control System) Regulations 2012 sought to give full effect in Irish domestic law to Council Regulation (E.C.) No. 1224/2009 of the 20th November 2009 (other than Art. 92A) and Commission Implementing Regulation (E.U.) No. 404/2011 of 8th April 2011 (other than Title VII). However, both of these Regulations were in any event binding in their entirety and directly applicable in all Member States.

8 Article 14 of Regulation 1224/2009 provides for the 'completion and submission of the fishing log book'. Article 15 of the same Regulation provides for the 'electronic completion and submission of the fishing log book data'.

9 Article 14.4 of Council Regulation (EEC) No. 1224/2009 imposes the following requirement:-

'Masters of Community Fishing Vessels shall also record in their fishing log book all estimated discards above 50 Kg. of live weight equivalent in volume for any species'.

10 Article 15.1 of 1224/2009 states as follows:-

'Masters of Community fishing vessels of 12 metres length overall or more shall record by electronic means the information referred to in Article 14, and shall send it by electronic means to the competent authority of the flag Member State at least once a day.'

11 It can be seen that Article 15.1 of Regulation 1224/2009 imposes two separate and discrete obligations on Masters of Community fishing vessels of 12 meters length overall or more. It imposes (i) an obligation to record certain information (referred to in the heading to Article 15 as the 'electronic completion of logbook data'), and (ii) an obligation to transmit that information to the competent authority at least once a day. The terms in which the recording obligation is imposed is as follows: 'Masters of Community fishing vessels of 12 meters length overall or more shall record by electronic means the information referred to in Article 14'. It is breach of this recording obligation that is charged in Count No 1.

12 The additional transmission obligation appears in the second clause of Article 15.1, following the comma that appears after 'Article 14', and it reads as follows: ' and send it by electronic means to the competent authority of the flag Member State at least once a day', (emphasis added).

13 Article 15.9 of Regulation 1224/2009 provides for the making of 'detailed rules' for the application of Article 15. Those detailed rules are to be found in Commission Implementation Regulation (EU) No. 404/2011. Regulation 404/2011 is sometimes referred to as the Implementation Regulation, and Regulation 1224/2009 is sometimes referred to as the Control Regulation. Both regulations require to be read together.

14 The structure of the Regulation 404/2011 is not user friendly and it is sometimes difficult to follow. It is divided into 'Titles' 'Chapters' 'Sections' and 'Articles'. In so far as the issues arising in this case are concerned the relevant Title would appear to be Title III dealing with 'Control of Fisheries'.

15 Title III is then subdivided into eight chapters, of which only Chapters I, II and III appear to be potentially relevant for the purposes of this case. Chapter I is entitled 'Fishing logbook, transhipment declaration and landing declaration in paper format'; Chapter II relates to 'Fishing logbook, transhipment declaration and landing declaration in electronic format'; and Chapter III relates to 'Common rules for fishing logbooks, transhipment declarations and landing declarations in paper or electronic format'.

16 In this case we are concerned neither with the rules relating to fishing logbooks in paper format (save to the extent that there may be common rules relating to fishing logbooks in paper or electronic formats), nor with the rules relating to transhipment declarations and landing declarations in either format. We are therefore only concerned with certain parts of Chapters II and III.

17 Chapter II is divided into two sections. Section 1 is entitled 'Completion and transmission of a fishing logbook, landing declaration and transhipment declaration data in electronic format', and is comprised of 11 individual articles, being Articles 36 to 46 inclusive. Again, we are only concerned with those articles to the extent that they relate to completion and transmission of a fishing logbook. Rules relating to completion and transmission of landing declaration and transhipment declaration data are not relevant to this case.

18 Section 2 is entitled 'Specific rules for the fishing logbook in electronic format', and is comprised of just one...