Kostan v Ireland

• Jurisdiction: Ireland
• Judge: McWilliam J.
• Judgment Date: 10 February 1978
• Neutral Citation: 1978 WJSC-HC 26,1978 WJSC-HC 642
• Docket Number: No. 1809P/ 1977,No. 1809P/1977
• Court: High Court
• Date: 10 February 1978

1978 WJSC-HC 26

THE HIGH COURT

No. 1809P/ 1977

KOSTAN v. IRELAND

JORDAN KOSTAN

.v.

IRELAND AND THE ATTORNEY-GENERAL

1 Judgment delivered by McWilliam J. on 10th February 1978

2 The Plaintiff is a Bulgarian citizen and was, at all material times, the Master of the fishing vessel Aurelia registered at Burgas, on the Black Sea on 28th September 1976, as such Master, he was convicted summarily under section 221 of the Fisheries (Consolidation) Act 1959of the offence that the vessel, being a foreign sea fishing boat did unlawfully enter within the exclusive fishery limits of the States and that a person then on board did fish there.

3 The Plaintiff was fined the sum of £100, which is the maximum fine provided under the section but, in accordance with the mandatory provisions of the section, the District Justice ordered the forfeiture of the fish and fishing gear, expressed to be of the total value of £102,040.

4 Section 221 of the Act of 1959 as amended by the Fisheries (Amendment) Act 1962 reads as follows:-

5 (1) It shall not be lawful for any foreign sea-fishing boat to enter within the exclusive fishery limits of the State except for -

6 (a) a purpose recognised by international law, or

7 (b) a purpose recognised by any convention, treaty or arrangement for the time being in force between the State and the country to which such boat belongs, or

8 (c) any other lawful purpose

9 (2) If any foreign sea-fishing boat enters within the exclusive fishery limits of the State in contravention of subsection (1) of this section, the Master of such boat shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding one hundred pounds and the Court shall, in case any person on board such boat had fished or attempted to fish while such boat was within such exclusive fishery limits, any may, in any other case, order any fish and fishing gear found on such boat to be forfeited.

10 The Plaintiff claims a declaration that subsection (2) of section 221 of the Act of 1959 is repugnant to the provisions of the Constitution, invalid and of no effect in law, and claims consequential relief.

11 The ground on which this claim is based is that the forfeiture of the fish and fishing gear constitutes a penalty and that this penalty is so great that the offence cannot be a minor offence within the meaning of Article 38 of the Constitution.

12 Sections 1, 2 and 5 of Article 38 are as follows:-

13 1. No person shall be tried on any criminal charge save in due course of law.

14 2. Minor offences may be tried by courts of summary jurisdiction.

15 5. Save in the case of the trial of offences under section 2, section 3 or section 4 of this Article, no person shall be tried on any criminal charge without a jury.

16 There have been many decisions of which Melling .v. O Mathghamhna (1960) I.R. 1 is the earliest and Re Haughey (1971) I.R. 247 is the latest to which I have been referred and in which it has been stated that the most important consideration in determining whether an offence is a minor offence or not is the severity of the punishment. No one can deny that a punishment involving the loss of property to the value of anything in the region of £100,000 is severe, and the argument advanced on behalf of the Defendants is that a forfeiture is a statutory consequence of conviction and not a direct punishment like a fine or a penalty and that the maximum fine which could be imposed in the case was one of £100, which is anything but severe considering the present value of money. In support of this argument I was referred to the case of Conroy .v. The Attorney-General & Keaveney (1965) I.R. 411in which it was held that a disqualification from holding a driving licence under the Road Traffic Acts upon conviction of certain offences is a consequence relating to fitness to drive and not a direct or primary punishment. I was also referred to sections of the Intoxicating Liquor Acts which provide for forfeiture of intoxicating liquor licences but I was not referred to any decisions relating to these Acts. I was also referred to instances where the conviction of an offence may result in disqualification from office.

17 An argument was also based on the common good and it was suggested that, if a person chooses to come into the waters of the State with his gear, the common good dictates that the tools of his trade and his catch should be automatically forfeited. I was referred to the case of the Attorney-General v. Southern Industrial Trust & Simon 94 I.L.T.R. 161 in support of this proposition, but, in that case, it was held that the proceedings were civil and not criminal and the remainder of the case concerned property rights and Articles 40 and 43 of the Constitution and I cannot accept that there is any analogy with the present case to be drawn from it on the question of forfeiture.

18 Nor can I see that there is any...