Kennedy v Ag and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Ó Caoimh
• Judgment Date: 30 July 2004
• Neutral Citation: [2004] IEHC 297
• Date: 30 July 2004
• Docket Number: [No. 833 JR/2001]
• Court: High Court

[2004] IEHC 297

THE HIGH COURT

[No. 833 JR/2001]

KENNEDY v. AG & ORS

JUDICIAL REVIEW

BETWEEN

THOMAS KENNEDY

APPLICANT

AND

THE ATTORNEY GENERAL AND THE MINISTER FOR THE MARINE AND NATURAL RESOURCES

RESPONDENTS

Citations:

MACKEREL (LICENSING) ORDER 1999 SI 311/1999 ART 3(8)(A)

MACKEREL (LICENSING) ORDER 1999 SI 311/1999 ART 3(10)

FISHERIES (CONSOLIDATION) ACT 1959 S223A

FISHERIES (AMDT) ACT 1978 S9

FISHERIES (AMDT) ACT 1983 S4

FISHERIES (CONSOLIDATION) ACT 1959 S223A(4)(2)

FISHERIES (CONSOLIDATION) ACT 1959 S223

FISHERIES (AMDT) ACT 1994

CONSTITUTION ART 38.1

EEC REG 3760/92 ART 2(1)

EEC REG 3760/92 ART 2(2)

EEC REG 170/83

EEC REG 2847/93 ART 1(1)

EEC REG 2847/93 ART 4(1)

EEC REG 2846/98 ART 1

EEC REG 2846/98 ART 2

EEC REG 2847/93 ART 7(1)

EEC REG 2846/98 ART 1(7)

EEC REG 2846/93 ART 6(1)

CONSTITUTION ART 15

CONSTITUTION ART 15.2.1

BROWNE V AG & MIN MARINE 2003 3 IR 205 2003/7/1351

SEA FISHERIES (DRIFTNETS) ORDER 1998 SI 267/1998

CITYVIEW PRESS V COMHAIRLE OILIUNA 1980 IR 381

EUROPEAN COMMUNITIES ACT 1972 S3

FISHERIES (CONSOLIDATION) ACT 1959 S223A(1)

MACKEREL (LICENSING) ORDER 1999 SI 311/1999 ART 3(1)

FISHERIES (CONSOLIDATION) ACT 1959 S224B

MEAGHER V MIN AGRICULTURE 1994 1 IR 329

FISHERIES (AMDT) ACT 1978 S2

MACKEREL (LICENSING) ORDER 1999 SI 311/1999 ART 3(5)

MACKEREL (LICENSING) ORDER 1999 SI 311/1999 ART 3(9)

KRAMER 1976 ECR 1279

EUROPEAN COMMUNITIES ACT 1972 S2

EUROPEAN COMMUNITIES ACT 1972 S3(3)

EEC REG 2847/93 RECITAL 5

EEC REG 2847/93 ART 38

EUROPEAN COMMUNITIES ACT 1972 S3(1)

MAHER V MIN AGRICULTURE 2001 2 IR 139

LAURENTIU V MIN FOR JUSTICE 1999 4 IR 27

DOMINIKANERINNEN-KLOSTER ALTENHOHHENAU V HAUPTZOLLANT ROSENHEIM 1995 ECR I-4069

Abstract:

Judicial review - Injunction restraining prosecution - Ultra vires - Whether the Minister acted ultra vires the powers conferred on him by section 223A of the 1959 Act in exercising the powers of licensing and the creation of an indictable offence -Fisheries (Consolidation) Act, 1959 - Mackerel (Licensing) Order 1999

Facts: The Minister issued the applicant with a Mackerel Fishing Licence pursuant to the 1999 Order containing a number of conditions, breach of which amounted to a criminal offence. The Applicant was charged on indictment with contravention of two conditions of his licence and the 1999 Order. Subsequently, the applicant sought an injunction by way of an application for judicial review restraining the A.G. from further prosecuting the applicant for the offences on grounds that the relevant conditions were ultra vires, null, void and of no force or effect as they were not conditions the Minister was entitled to impose. Consequently, if the conditions were null and void then there could be no offence for a breach of such conditions. The applicant submitted that the Minister exceeded the jurisdiction conferred by s.223A of the 1959 Act and therefore there was no legal basis for the charges proffered against him and his right not to be tried on any criminal charge save in due course of law had been breached.

Held by O'Caoimh J. in allowing the application: 1. That the Minister was not entitled to invoke the provisions of s.223A in making the impugned orders. The impugned measures were directed to implementing Community policy and were made in the context of the Common Fisheries Policy.

Vincent Browne v. The Attorney General & Others (Unreported, Supreme Court, 16 July, 2003 followed and applied.

Reporter: L.O'S.

1 Mr. Justice Ó Caoimh delivered the 30th of July, 2004 .

2 By order of this Court made 10 ^th December, 2001 ( Ó Caoimh J.), the applicant was given leave to apply by way of an application for judicial review for an injunction restraining the Attorney General from prosecuting the applicant for offences set out on Tralee Charge Sheet 119 of 2001.

3 2. A declaration that articles 3, sub-article (8), para. (a) and article 3, sub-article (10) of the Mackerel (Licensing) Order, 1999, made by the second named respondent (hereinafter referred to as the Minister), is ultra vires and exceeds the jurisdiction conferred by s. 223A of the Fisheries (Consolidation) Act, 1959(as inserted by s. 9 of the Fisheries (Amendment) Act, 1978and amended by s. 4 of the Fisheries (Amendment) Act, 1983).

4 3. A declaration that the temporal restriction contained in condition 8 of the applicant's licence, imposed by the Minister, is ultra vires and is not authorised by article 3(8) of the Mackerel (Licensing) Order, 1999 and is null, void and of no force or effect in law.

5 4. A declaration that condition 9 of the applicant's licence, imposed by the Minister, is ultra vires s. 223A of the Act of 1959 as amended aforesaid and is null and void and of no force or effect in law.

6 5. An order of certiorari quashing the conditions 8 and 9 of the applicant's licence and such articles, sub-articles and paragraphs of the Order of 1999 as to this Court seems appropriate.

7 The grounds upon which the applicant was given leave aforesaid are as follows:-

8 1. The second named respondent, in purported reliance upon the powers conferred on him by s. 223A of the Fisheries (Consolidation) Act, 1959(as inserted by s. 9 of the Fisheries (Amendment) Act, 1978and amended by s. 4 of the Fisheries (Amendment) Act, 1983) (hereinafter referred to as the "Acts") to prescribe and adopt measures of conservation of the fish stocks and rational exploitation of fisheries, introduced the Mackerel (Licensing) Order, 1999 (Statutory Instrument No. 311 of 1999), hereinafter referred to as the "Order".

9 2. The said Order provides for the establishment of a licensing regime for the fishing of mackerel in areas defined in the Order, for boats over a specific length and further, in article 3(8) of the Order specifies the types of conditions which can be attached to licences granted pursuant to the said Order viz:

10 a "(a) prohibiting the landing or transhipment of mackerel other than at a specified place.

11 (b) requiring the keeping by the master of the licensed vessel of such records as are specified in the licence.

12 (c) requiring the master of the licensed vessel at all times on a request being made in that behalf to permit the boarding and inspection of the vessel and inspection of any records kept on board the vessel in relation to the vessel, whether pursuant to a requirement of the licence or otherwise, by a sea fisheries protection officer and the taking of copies of any such records by such an officer or person, and to give such officer such assistance as may be reasonable to assist in such inspection."

13 3. Article 3 (10) of the Order provides that the master of the licensed vessel shall not contravene or cause or permit a contravention of any condition of the licence granted pursuant to the Order and s. 223A(4) (2) of the Act provides, that a person who contravenes or attempts to contravene an order under s.223 shall be guilty of an offence.

14 4. A mackerel fishing licence was issued to the applicant (hereinafter referred to as the licence) on or about the 20 ^thOctober 2000 by the second named respondent, its servants or agents. A number of conditions were attached to the said Licence, including the following:-

15 (a) Condition 8 which requires the applicant to give 4 hours notice of his intention to land or tranship mackerel at a port to a sea fisheries protection officer stationed at the relevant port and

16 (b) Condition 9 which states that mackerel may be landed or transhipped only at ports designated and named in the said condition, or such other ports specified to the master of the licensed vessel by a senior sea fisheries protection officer.

17 5. Condition 8 purportedly attached to the applicant's licence, is ultra vires, null, void and of no force or effect as it is not a condition which the second named respondent is entitled to attach to the licence being restrictive, unnecessary, impermissible and outside and far in excess of the second named respondent's power to attach conditions as inserted in article 3, sub-article (8) of the Order (set out above at paragraph 2) and the second named respondent, in exercising his alleged power to impose the said condition, has exceeded his jurisdiction and acted ultra vires, outside his power and without statutory authority. As a result of the foregoing, if condition 8 of the licence is invalid, void and of not of force or effect, no offence is committed should the said condition be breached.

18 6. Further, the second named respondent, in purporting to promulgate an order which prohibits the landing or transhipment of mackerel other than at a specified port, pursuant to s. 223A of the Acts and evidenced by condition 9 of the licence, has acted in a manner unauthorised by the said section, which permits the Minister only to prescribe and adopt measures of conservation of fish stocks and measures of rational exploitation of fisheries.

19 7. Article 3, sub-article (8), paragraph (a) of the Order, is ultra vires the scope and effect of s. 223A of the Acts and is null, void and of no force or effect. Accordingly, condition 9 of the licence, attached pursuant to the supposed authority conferred by article 3, sub-article (8), paragraph (a) of the Order has been invalidly, wrongfully and unlawfully imposed and is ultra vires, null, void and of no force or effect. As a result of the foregoing, if condition 9 of the licence is invalid, void and of no force or effect, no offence is committed should the said condition be breached.

20 8. Alternatively, in promulgating article 3, sub-article (8), paragraph (a) of the Order and imposing condition 9 of the licence pursuant to same, the second named respondent erred in law and exceeded his powers under the said Acts and further, condition 9 of the applicant's licence, purportedly made pursuant to article 3, sub-article (8), paragraph (a) of the Order is ultra...