Minister for the Environment, Heritage and Local Government -v- Leneghan & Anor, [2009] IEHC 226 (2009)

Docket Number:2008 1119 S
Party Name:Minister for the Environment, Heritage and Local Government, Leneghan & Anor
Judge:Hedigan J.
 
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THE HIGH COURT2008 1119 SS

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857, AS EXTENDED BY SECTION 51(1) OF THE

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN:

THE MINISTER FOR THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENTPROSECUTOR/APPELLANTAND

MICHAEL JOSEPH LENEGHAN and PATRICK MCHUGHACCUSED/RESPONDENTSJudgment of Mr. Justice Hedigan delivered on the 12th day of May, 2009

  1. This is an appeal by way of case stated by District Judge Mary Devins pursuant to section 2 of the Summary Jurisdiction Act 1857 (as extended by section 51 of the Courts (Supplemental Provisions) Act 1961) on the application of the prosecutor who was dissatisfied with the determination of the learned District Judge as being erroneous in point of law.

  2. The opinion of the High Court is sought on the following question:

    Was the learned District Judge correct in her determination that an offence contrary to Regulation 4(3) of the European Communities (Conservation of Wild Birds)(Owenduff/Nephin SPA004098) Regulations 2005 (S.I. No. 715 of 2005) is not one of strict liability?

    1. Factual and Procedural Background

  3. The respondents are farmers from Ballycroy, County Mayo who first appeared before Ballycroy District Court on the 14th February, 2008, each being charged with one offence contrary to Regulation 4(3) of the European Communities (Conservation of Wild Birds)(Owenduff/Nephin SPA004098) Regulations 2005 ('the 2005 Regulations'). The specifics of the offence, as set out in the summons, were as follows:-

    That you, on the 2nd day of May 2007, within the District Court Area of Ballycroy in District No. 3 at an area of land known as Tarsaghaun More within the Owenduff/Nephin Complex special protection area in the County of Mayo, did graze livestock above a recommended density and period (as defined in REPS guidelines or approved farm plans) therein to wit: 9 sheep and 10 lambs without the prior consent of the Minister for the Environment, Heritage and Local Government in contravention of Regulation 4(3) of the European Communities (Conservation of Wild Birds)(Owenduff/Nephin Complex SPA 004098) Regulations 2005 (S.I. No. 715 of 2005) made under section 3 of the European Communities Act 1972 in contravention of the said Regulations.

  4. During the course of the trial in respect of the alleged offences, the learned District Judge made a number of findings of fact, including the following:

    (a) A number of sheep and lambs had been observed grazing by a Conservation Ranger on the lands specified in the summons, before being rounded up and identified;

    (b) The lands on which the sheep and lambs had been grazing were part of a Special Protection Area covered by the 2005 Regulations;

    (c) The two respondents were the owners of the sheep and lambs, the subject-matter of their respective summons;

    (d) The function of the 2005 Regulations was to prohibit overgrazing and limit certain other activities, unless the prior consent of the appellant was obtained, in Special Protection Areas; and

    (e) No such consent had been obtained by the respondents in respect of the activities of their animals in the present case.

  5. At the conclusion of the prosecution case on the 14th February, 2008, the respondents' solicitor indicated that he did not intend to go into evidence but submitted that, before proceeding any further, the Court should determine the issue of whether the offence under Regulation 4(3) of the 2005 Regulations was one of strict liability. The matter was therefore adjourned until the 26th March, 2008 to allow the parties to prepare submissions on this point.

  6. On the 26th March, 2008, the District Judge heard extensive...

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