Maguire v Shannon Regional Fisheries Board

• Jurisdiction: Ireland
• Judge: Mr. Justice Lynch
• Judgment Date: 19 May 1994
• Neutral Citation: [1994] IEHC 4
• Court: High Court
• Docket Number: Record No. 1377SS/1993,[1993 No. 1377 SS]
• Date: 19 May 1994

[1994] IEHC 4

THE HIGH COURT

Record No. 1377SS/1993

MAGUIRE v. SHANNON REGIONAL FISHERIES BOARD

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT

1857 (19 & 20 VICTORIA CHAPTER 43) AS EXTENDED BY SECTION 51

OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 (No. 39 of

1961)

BETWEEN

BERNARD MAGUIRE

APPELLANT

AND

THE SHANNON REGIONAL FISHERIES BOARD

RESPONDENT

Citations:

FISHERIES (CONSOLIDATION) ACT 1959 S171(1)(b)

FISHERIES (CONSOLIDATION) ACT 1959 S171

LOCAL GOVT (WATER POLLUTION) (AMDT) ACT 1990 S24

GAMMON (HONG KONG) LTD & ORS V AG OF HONG KONG 1985 AC 1

DPP, PEOPLE V MURRAY 1977 IR 360

INSPECTOR OF TAXES V KIERNAN 1981 IR 117

DUNCAN V GLEESON 1969 IR 116

REYNOLDS V G H AUSTIN & SONS LTD 1951 2 KB 135

LIM CHIN AIK V R 1963 AC 160

SWEET V PARSLEY 1969 1 AER 347

PRICE V CROMACK 1975 2 AER 113

ALPHACELL LTD V WOODWORD 1972 AC 824

LOCAL GOVT (WATER POLLUTION) ACT 1977 S34(c)

LOCAL GOVT (WATER POLLUTION) (AMDT) ACT 1990 S30

LOCAL GOVT (WATER POLLUTION) (AMDT) ACT 1990 S25

LOCAL GOVT (WATER POLLUTION) ACT 1977 S3

LOCAL GOVT (WATER POLLUTION) ACT 1977 S1

LOCAL GOVT (WATER POLLUTION) ACT 1977 S3(3)

LOCAL GOVT (WATER POLLUTION) (AMDT) ACT 1990 S3(1)(b)

SHERRAS V DE RUTZEN 1895 1 QBD 918

TOPPIN V MARCUS 1908 2 IR 423

RIVERS (PREVENTION OF POLLUTION) ACT 1951 S2(1)(a) UK

FISHERIES (CONSOLIDATION) ACT 1959 S171(1)

LOCAL GOVT (WATER POLLUTION) ACT 1977 S3(1)

DAVIES V HARVEY LR 9 QB 433

AG V LOCKWOOD 9 M & W 378

FITZPATRICK V KELLY LR 8 QB 337

R V WOODROW 15 M & W 404

ROBERTS V EGERTON LR 9 QB 494

R V STEPHENS LR 1 QB 702

R V MEDLEY 6 C & P 292

BARNES V AKROYD LR 7 QB 474

MORDEN V PORTER 7 CB (NS) 641

Synopsis:

CRIMINAL LAW

Offence

Commission - Proof - Defendant - ~Mens rea~ - Relevance - Offence created by statute - Whether strict liability imposed - Charge that defendant caused deleterious matter to fall into river - Unintentional escape of matter resulting from fractured pipe - Conviction of defendant upheld - Fisheries (Consolidation) Act, 1959, s. 171 - Local Government (Water Pollution) (Amendment) Act, 1990, s. 25 - (1993/1377 SS - Lynch J. - 19/5/94)- [1994] 3 IR 580 - [1994] 2 ILRM 253

|Maguire v. Shannon Regional Fisheries Board|

1 Judgment of Mr. Justice Lynch delivered the19th day of May 1994 .

2 This is an appeal from the District Court by way of Case Stated and accordingly, I have called Mr. Maguire "the Appellant" rather than "the Complainant" as in the title to the Case Stated.

3 The Appellant was convicted by the District Court, sitting at Cavan on the 10th day of June, 1993 of the offence that he did within the period 30th day of July, 1992 and 31st day of July, 1992 (both days inclusive) at Finaway (Electoral division of Kilnaleck) in the County of Cavan within the Shannon Fisheries Region cause to fall into waters (to wit a watercourse, a tributory of the Finaway River/Mount Nugent River) deleterious matter (to wit whey and effluent) contrary to Section 171(1)(b) of the Fisheries (Consolidation) Act 1959.

4 The facts as found by the District Judge are set out in the Case Stated as follows:-

5 (1) Bernard Maguire was the proprietor of a piggery unit situated adjacent to the Finaway River on the 30th and 31st of July, 1992.

6 (2) In February, 1992 at a cost of £200,000 a new feeding system was installed at the piggery unit with a sophisticated alarm system.

7 (3) A PVC pipe through which whey passed from an over ground tank to the mixer room as part of the new feeding system fractured during the early hours of the morning of Thursday 30th of July.

8 (4) The bearing pressure which the PVC pipe was under was one twentieth of its capacity.

9 (5) The cause of the fracture to the pipe is unknown.

10 (6) Whey escaped from the PVC pipe and some of it found its way into the Finaway River through an underground rainwater discharge pipe.

11 (7) The feeding systems alarm did not sound when the whey escaped.

12 (8) Brendan Lafferty the unit manager of the piggery arrived on the site at about 7.30 a.m., Thursday 30th of July and discovered the whey spillage. He did not notice a flow of whey into the Finaway River.

13 (9) Brian Brady an employee at the piggery unit noticed whey in the Finaway River at about 10 a.m. on Thursday 30th, July.

14 (10) Peter McDermott the general manager of Bernard Maguire's piggery operations arrived at the site about 10 a.m. and took charge of the situation.

15 (11) Two dams were erected on the Finaway River between 10 a.m. and 11 a.m. made out of soil and sandbags, which dams were situated downstream from the discharge pipe.

16 (12) Two officials of the Shannon Regional Fisheries Board, Brenda Montgomery and Gerry Donohoe visited the piggery unit on Friday 31st July, 1992 at about 9 a.m..

17 (13) They inspected the Finaway River and Brenda Montgomery took three samples from the water. These samples were taken from the discharge point and from points twenty yards upstream and downstream respectively from that point.

18 (14) The three samples were taken to Dublin where they were analysed by Dr. Joseph Henley. Dr. Henley found that the sample taken twenty yards downstream of the discharge point had a B.O.D. (Biological Oxygen Demand) of 19.75 and suspended solids of 9.0, the sample taken at the point of discharge had a B.O.D. of 157.75 and suspended solids of 62.0 and the sample taken twenty yards upstream had a B.O.D. of 1.1 and suspended solids of 2.0. Dr. Henley stated that a B.O.D. of 10 is usually classed as polluted, but that below a B.O.D. of 20 there is no necessity to treat the water.

19 (15) Brenda Montgomery and Gerry Donohoe returned to the site with another official of the Shannon Fisheries Board, Tony Denny at about 12.10 p.m.

20 (16) They walked the Finaway River down to the Mountnugent River and found 29 dead trout.

21 (17) The whey from the piggery unit which flowed into the Finaway River on the 30th of July, 1992 constituted deleterious matter within the meaning of the Fisheries (Consolidation) Act 1959.

22 (18) The Appellant took all reasonable steps at a very considerable expense to prevent the accident and the management and staff of the pig unit did everything in their power to prevent the flow of whey into the Finaway River.

23 (19) The flow of whey into the Finaway River was caused by the Appellant, within the meaning of Section 171 of the Fisheries (Consolidation) Act 1959.

THE FISHERIES (CONSOLIDATION) ACT 1959

24 Section 171 of the above Act so far as material for the purposes of this case provides as follows:-

"171-(1) Any person who -"

(a) steeps in any waters any flax or hemp or,

(b) throws, empties, permits or causes to fall into any waters any deleterious matter shall unless such act is done under and in accordance with a licence granted by the Minister under this section be guilty of an offence under this section."

THE SUBMISSIONS

25 Counsel for the Appellant submitted as follows:-

26 (1) The issue as to when an offence of strict liability is created by a Statute arises in this case. Here it is found as a fact that the Appellant spent some £200,000 on the system; that he took all reasonable steps to prevent the sort of accident which happened in this case; and that he and his staff did everything in their power to prevent the flow of whey into the river. Section 171 of the 1959 Act as amended by Section 24 of the Local Government (Water Pollution) (Amendment) Act 1990 creates an offence which if tried on indictment can result in a fine of £25,000 or five years imprisonment or both.

27 Counsel relied on the passage from Lord Scarman's Judgment in Gammon (Hong Kong) Limited and others v. The Attorney General of Hong Kong(1985) 1 A.C., in which Lord Scarman sets out five propositions as follows:-

28 2 "(1) There is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence;

29 (2) The presumption is particularly strong where the offence is truly criminal in character;

30 (3) The presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the Statute;

31 (4) The only situation in which the presumption can be displaced is where the Statute is concerned with an issue of social concern, and public safety is such an issue;

32 (5) Even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the Statute by encouraging greater vigilance to prevent the commission of the prohibited act."

33 Counsel for the Appellant on this aspect of the case also referred to the People (DPP) v. Murray 1977 I.R. 360; Inspector of Taxes v. Kiernan (1981) I.R. 117; Duncan v. Gleeson (1969) I.R. 116; Reynolds v. G.H. Austin & Sons Limited (1951) 2KB 135; Lim Chin Aik v. The Queen (1963) A.C. 160 and Sweet v. Parsley (1969) 1 A.E.R. 347.

34 (2) Counsel for the Appellant further submitted that even if Section 171 of the 1959 Act creates an offence of strict liability the Appellant still was not guilty as he had not caused the whey to fall into the river. What happened was an unforeseen and unforeseeable event and the District Judge has found that the Appellant did nothing wrong. On this aspect of the case Counsel relied on Duncan v. Gleeson above; Price v. Cromack (1975) 2 A.E.R. 113 and distinguished the House of Lords decision in Alphacell Limited v. Woodword (1972) A.C. 824.

35 Counsel for the Respondents submitted as follows:-

36 (1) Section 171 of the 1959 Act creates an offence of strict liability as is demonstrated by the history of the legislation. Section 34(c) of the Local Government (Water Pollution) Act 1977 purported to repeal Section 171 of the 1959 Act but was never brought into operation and was itself repealed by Section...