L'Henreyenat v Ireland

JurisdictionIreland
JudgeO'HIGGINS C.J.
Judgment Date01 January 1984
Neutral Citation1983 WJSC-SC 2697
CourtSupreme Court
Date01 January 1984

1983 WJSC-SC 2697

THE SUPREME COURT

Chief Justice

Walsh J.

Griffin J.

McCarthy J.

O'Hanlon J.

178/82
233/82
L'HENRYENAT v. IRELAND
JEAN CLAUDE L'HENRYENAT
Plaintiff/
Respondent

and

IRELAND, THE MINISTER FOR FISHERIES
AND FORESTRY AND THE ATTORNEY GENERAL
Defendants/
Appellants

Subject Headings:

CONSTITUTION: statute

1

JUDGMENT OF THE COURT delivered the 1st day of July 1983 by O'HIGGINS C.J. [NEM NSS]

2

In these proceedings the Plaintiff challenged the validity of Sections 12, 13 and 14 of the Fisheries (Amendment) Act 1978which amended by the insertion of new sections therein, the Fisheries (Consolidation) Act 1959. The Plaintiff's claim was heard in the High Court by Miss Justice Carroll who held against the Plaintiff's claim with regard to Sections 12 and 13 but concluded in the Plaintiff's favour that portion of Section 14, which inserted a new Section, 235(2)(a) and (b), into the Fisheries (Consolidation) Act 1959, was invalid. Against her decision in this regard this appeal has been brought by the Defendants. A cross-appeal raising questions as to the decision of the learned trial Judge in respect of Sections 12 and 13 and other matters, has hot been moved.

3

The Fisheries (Consolidation) Act 1959, as amended by the Fisheries (Amendment) Act 1978, confers inter alia wide powers on sea fishery protection officers in relation to the protection of our territorial waters against illegal fishing by foreign sea fishing boats. Such officers, generally naval officers serving on board vessels belonging to the State, may stop, board and search boats suspected of fishing within Irish territorial waters, and may take any such boat and all persons on board to the nearest or most convenient port (Section 233). If a sea fishery protection officer so detains a boat and the persons thereon at a port he must "as soon as may be" bring the master of the boat and any other persons on board against whom proceedings for illegal fishing have been or are about to be instituted, before a District Justice or a Peace Commissioner. If the District Justice or Peace Commissioner is satisfied that such proceedings have been or are about to be instituted, he may order the detention of the boat and those charged or to be charged until the proceedings have been dealt with. The District Justice, however, may order the release on bail of any person so charged before the proceedings are adjudicated upon (Section 234)(2). Where an Order for the detention of a boat has been made, Section 235(2)(a) and (b) which are the impugned provisions inserted by Section 14 of the Act of 1978, may apply. These provisions are as follows:

"235(2) (a) Where, in respect of an offence or offences under a provision of chapter 2 or 3 of this Part, an Order is made under subsection (1) of Section 234 or subsection (1) of this Section in relation to a sea fishing boat, a District Justice may, at his discretion, by Order directed to a sea fisheries protection officer, require the boat to be released if security, which in the opinion of the Justice is satisfactory, is given for payment, in the event of conviction of the defendant in respect of the offence or offences or in the event of his failure to attend before any Court when such attendance is required for the purposes of any preliminary examinations under the Criminal Procedure Act, 1967, in relation to the offence or offences or any trials, appeals or other proceedings in relation to the offence or offences, of a sum that in the opinion"

4

of the Justice is sufficient to provide for

5

(i) payment of the maximum fine or fines ordered, or which may be ordered, to be paid in respect of the offence or offences,

6

(ii) the estimated amount of the costs (if any) of any trials, appeals or other proceedings in relation to the offence or offences awarded, or which may be awarded, against the defendant concerned, and

7

(iii) the estimated value of any forfeitures ordered, or which may be ordered, to...

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6 cases
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    • 22 September 1995
    ...reject the Society's submission on this point and in doing so I adopt the comments of Carroll J. in L'Henryenat -v- The Attorney General (1983) I.R. 193 at page 206 on a similar submission. The Plaintiffs who invoked the Constitution in these proceedings were represented at the hearing by ......
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    ... ... think it proper to remind the Plaintiff and others interested in these proceedings that the sole and exclusive power of altering the laws of Ireland is, by the Constitution, vested in the Oireachtas. The Courts declare what the law is - it is for the Oireachtas to make changes if it so ... ...
  • D v The Director of Public Prosecutions
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    ...394, State (Wine) v. Clancy [1980] I.R. 228, The State (Pheasantry Ltd.) v. Donnelly [1982] I.L.R.M. 512 and L'Henreyenat v. Ireland [1983] I.R. 193 amongst others, and it has been held that the severity of the punishment likely to be imposed, appraised from the standpoint of an ordinary ci......
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