Gearty and Another v Director of Public Prosecutions and Others

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr Justice Peter Charleton
• Judgment Date: 17 October 2024
• Neutral Citation: [2024] IESC 45
• Docket Number: Supreme Court appeal number: S:AP:IE:2023:0106 High Court record number: 2014 No 773 JR

Between:

Gerry Gearty and Sean Beirne

Applicants/Appellants

and

The Director of Public Prosecutions, the District Court Judge for the Time Being Assigned to the District Court Area of Longford and the Minister for Arts, Heritage and the Gaeltacht, Ireland and Attorney General

Respondents

[2024] IESC 45

O'Donnell CJ

Charleton J

Murray J

Collins J

Donnelly J

Supreme Court appeal number: S:AP:IE:2023:0106

[2023] IEHC 409

High Court record number: 2014 No 773 JR

An Chúirt Uachtarach

The Supreme Court

Judgment of Mr Justice Peter Charleton delivered on Thursday 17 October 2024

1 In these proceedings, the creation by Ministerial regulation of indictable offences, carrying up to 3 years imprisonment, to protect bog habitats is challenged as an infringement of the “sole and exclusive power of making laws for the State” vested in the Oireachtas under Article 15.2.1° of the Constitution, whereby “no other legislative authority has power to make laws for the State.” Subsidiary legislation is a necessary part of the legal landscape, since without legislative instruments to fill in the logistical details of Acts of the Oireachtas, legislation would become over-complex and prolix. In John Conway v An Bord Pleanála, The Minister for Housing, Local Government and Heritage, Ireland, The Attorney General, and Silvermount Limited [2024] IESC 34, and in many other cases, subsidiary legislation has been sought to be impugned by arguing that the Oireachtas had not sufficiently constricted the necessary area of choice of, and given sufficient guidance as to content to, the delegate. Here, the parent legislation is of European origin. Hence, Article 29.4.6° of the Constitution exempts “laws enacted, acts done or measures adopted by the State” provided these “are necessitated by the obligations of membership” of the European Union. Whether the parent legislation originates in the Oireachtas or is a measure which Ireland is required to implement by virtue of European obligations, the fundamental test in all the case law remains that set out in Conway: in permitting the provision in question to be made by Statutory Instrument has there been an abdication by the Oireachtas of the constitutional mandate in Article 15.2.1°?

Background

2 The appellants, Gerry Gearty and Sean Beirne, have traditionally exercised turbary rights on boglands in county Longford, specifically at Cloneen bog. With the increasing realisation of the value of bog habitats, and in pursuit of the preservation of these eco-systems as carbon sinks, over several decades, rights to cut turf have been severely curtailed by law. Bog-habitat conservation has been a policy pursued by the European Union over those decades; but there has been an issue as to the effectiveness of Ireland's response. An instance is the European Commission's referral of Ireland to the Court of Justice of the European Union, on 13 March 2024, for failing to halt the continued cutting of peat in areas designated to conserve raised bogs and blanket bogs; https://ec.europa.eu/commission/presscorner/detail/en/ip_24_1232 refers.

3 Legislation to preserve Ireland's boglands does not have its origin in Acts of the Oireachtas. Rather, the legislation is of a subsidiary kind, promulgated through Ministerial regulations, and expressed to implement measures obligated by the European Union. At question here is Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora; https://eur-lex.europa.eu/eli/ dir/1992/43/oj refers. This parent legislation is given effect in the European Communities (Birds and Habitats) Regulations 2011, Statutory Instrument 477/2011; https://www.irishstatutebook.ie/eli/2011/si/477/made/en/print refers. In effect, these provisions provide that the various families traditionally using boglands to harvest turf have become subject to a host of legal obligations. The measures applicable to this case are the prohibition of turf cutting in many instances and this is coupled with a duty to allow authorised officers of the Minister to enter onto and inspect the state of privately-owned boglands. The purpose of the latter is enforcement, whereby unauthorised turf-cutting can be detected and evidence gathered for possible prosecution of offenders. In this case the appellants are not charged with illegal turf harvesting, but with refusal to allow authorised officers of the Minister to enter their private boglands in June 2012. Their response to that charge, now dating back over 12 years, is this challenge to the transposition of the European Union prohibition and in particular through the creation of indictable, as opposed to summary, offences by Ministerial regulation. Another protective layer is imminent, requiring a criminal law response, in the form of Directive on the Protection of the Environment through Criminal Law ( Directive 2024/1203), that came into force on 20 May 2024 that ultimately will replace, taking account of the transposition period, of Directive 2008/99/EC; https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ%3AL_202401203

Fundamentals

4 Hence, the issue on this appeal is very narrow. By reason of the decision of the High Court in O'Connor & McCarthy v The People (DPP) & Others [2015] IEHC 558, upheld by the Court of Appeal at [2017] IECA 101, the appellants accept that they cannot maintain a direct challenge to the validity of the 2011 Regulations. This case is reduced, therefore, to a challenge to the validity of the amendment introduced in 2007 to section 3 of the European Communities Act permitting a Minister, in implementing a measure required by European law, to create indictable offences punishable by up to 3 years imprisonment or a fine of up to €500,000, where the Minister considered such an approach necessary to give full effect to a provision of the treaties of the European Union or an act or provision of an institution of the European Union, and for the purposes of ensuring that penalties in respect of an offence are effective, proportionate and have a deterrent effect. This was an argument that was both narrow and difficult to advance in the light of the decisions in O'Connor. In a compellingly reasoned judgment in the High Court by Simons J, [2023] IEHC 409, and quoted below, that claim was dismissed. The analysis which follows conforms to that reasoning and accepts that judgment.

5 The argument here is that the power conferred on a Minister by the 2007 amendment, or other subsidiary legislative body, to make secondary legislation creating an indictable offence, is a function exclusively for the Oireachtas under Article 15.2.1° of the Constitution. Directives of the European Union leave to Member States the choice as to how to achieve the objectives set out in the legislation. In some Member States, compliance with the obligations set out in Directives may be through administrative measures. That is not the usual model adopted in Ireland. Since the European Communities Act 1972, the preferred method of the State for the transposition of Directives has been by statutory instrument giving effect to the substance of the relevant prohibition. These were invariably enforced through summary criminal prosecution for breach. From 1972 to 2007, newly promulgated summary offences, passed by Ministerial regulation made under s 3 of the 1972 Act, were prosecutable only in the District Court. Hence, no indictable offences, tried in ordinary course before a judge and jury in the Circuit Court, were created. With summary conviction, penalties are limited to the District Court's jurisdiction; up to 12 months imprisonment, with a maximum penalty for two or more offences of 24 months, where consecutive terms are appropriate, and/or a fine of up to €5,000. Section 3(3) of the 1972 Act, as originally enacted, provided expressly that “Regulations under this section shall not create an indictable offence.” Denham J commented on the rationale for this preclusion in Browne v Ireland [2003] 3 IR 205, stating at [242 – 243] that this limitation to summary prosecutions recognised “the significance of indictable offences” but she also remarked that “the legislature is not barred from revising the issue”.

6 The European Communities Act 2007 removed that limitation, whereby transposed European legislation was enforced through summary offence prosecution only and, for the first time, provided for Ministerial regulations to create offences which were triable either summarily or on indictment. Section 2 of the 2007 Act substituted s 3(3) of the 1972 Act which enables the creation of indictable offences, but with a maximum penalty for each offence of up to 3 years imprisonment.

7 Every offence created by the Oireachtas, or by the prior authority of the Parliament of the United Kingdom of Great Britain and Ireland and carried over under Article 50 of the Constitution, has an express provision providing for a maximum penalty. In contrast, the common law is generally unlimited as to how an offender is sentenced, but with certain offences traditionally triable on indictment. Hence, inchoate offences, attempts at or incitement to or conspiracy to commit crimes, have no fixed penalty, unless these offences were created by statute. The classification as between felonies and misdemeanours has been removed in this jurisdiction; this is notwithstanding felony being part of a classification in Article 15.13 of the Constitution as to arrest by public representatives. Replacing that arcane distinction is a statutory taxonomy based on seriousness. Here the choice made by the Oireachtas for the enforcement of Ireland's obligations to the European Union has been to enable the enforcement through delegated legislation by both summary prosecution and a form of indictable offence where the penalty is limited; s 2 of the 2007 Act. The choice made by the Oireachtas in the legislation is to set the...