Minister for the Environment v Leneghan
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 12 May 2009 |
| Neutral Citation | [2009] IEHC 226 |
| Date | 12 May 2009 |
| Court | High Court |
| Docket Number | [2008 No. 1119 SS] |
[2009] IEHC 226
THE HIGH COURT
BETWEEN:
AND
SUMMARY JURISDICTION ACT 1857 S2
COURTS SUPPLEMENTAL PROVISION ACT 1961 S51
EUROPEAN COMMUNITIES CONSERVATION OF WILD BIRDS)(OWENDUFF/ NEPHIN SPA004098) REGS 2005 SI 715/2005 REG 4(3)
SHERRAS v DE RUTZEN 1895 1 QB 918
GAMMON (HONG KONG) LTD v AG 1985 AC 1
MAGUIRE v SHANNON REGIONAL FISHERIES BOARD 1994 3 IR 580
SHANNON REGIONAL FISHERIES BOARD v CAVAN CO COUNCIL 1996 3 IR 267
R v CITY SAULT SAINTE MARIE 1978 85 DLR (3d)
C(C) v IRELAND & ORS 2006 4 IR 1
REILLY v JUDGE PATTWELL UNREP MCARTHY 17.10.2008 2008 IEHC 446
M(M) v DPP UNREP SUPREME 23.1.2007 2007/38/7779 2007 IESC 1
Judgment of Mr. Justice Hedigandelivered on the 12th day of May, 2009
1. This is an appeal by way of case stated by District Judge Mary Devins pursuant to section 2 of the Summary Jurisdiction Act 1857 (as extended by section 51 of the Courts (Supplemental Provisions) Act 1961) on the application of the prosecutor who was dissatisfied with the determination of the learned District Judge as being erroneous in point of law.
2. The opinion of the High Court is sought on the following question: Was the learned District Judge correct in her determination that an offence contrary to Regulation 4(3) of the European Communities (Conservation of Wild Birds)(Owenduff/Nephin SPA004098) Regulations 2005 (S.I. No. 715 of 2005) is not one of strict liability?
3. The respondents are farmers from Ballycroy, County Mayo who first appeared before Ballycroy District Court on the 14 th of February 2008, each being charged with one offence contrary to Regulation 4(3) of the European Communities (Conservation of Wild Birds)(Owenduff/Nephin SPA004098) Regulations 2005 ('the 2005 Regulations'). The specifics of the offence, as set out in the summons, were as follows:-
"That you, on the 2 nd day of May 2007, within the District Court Area of Ballycroy in District No. 3 at an area of land known as Tarsaghaun More within the Owenduff/Nephin Complex special protection area in the County of Mayo, did graze livestock above a recommended density and period (as defined in REPS guidelines or approved farm plans) therein to wit: 9 sheep and 10 lambs without the prior consent of the Minister for the Environment, Heritage and Local Government in contravention of Regulation 4(3) of the European Communities (Conservation of Wild Birds)(Owenduff/Nephin Complex SPA 004098) Regulations 2005 ( S.I. No. 715 of 2005) made under section 3 of the European Communities Act 1972 in contravention of the said Regulations."
4. During the course of the trial in respect of the alleged offences, the learned District Judge made a number of findings of fact, including the following:
(a) A number of sheep and lambs had been observed grazing by a Conservation Ranger on the lands specified in the summons, before being rounded up and identified;
(b) The lands on which the sheep and lambs had been grazing were part of a Special Protection Area covered by the 2005 Regulations;
(c) The two respondents were the owners of the sheep and lambs, the subject-matter of their respective summons;
(d) The function of the 2005 Regulations was to prohibit overgrazing and limit certain other activities, unless the prior consent of the appellant was obtained, in Special Protection Areas; and
(e) No such consent had been obtained by the respondents in respect of the activities of their animals in the present case.
6. At the conclusion of the prosecution case on the 14 th of February 2008, the respondents' solicitor indicated that he did not intend to go into evidence but submitted that, before proceeding any further, the Court should determine the issue of whether the offence under Regulation 4(3) of the 2005 Regulations was one of strict liability. The matter was therefore adjourned until the 26 th of March 2008 to allow the parties to prepare submissions on this point.
7. On the 26 th of March 2008, the District Judge heard extensive submissions from both sides as to the nature of the offence in question. The appellant argued that the prosecution were not required to show any mens rea element and that the offence was in fact one of strict liability. The respondents contested this interpretation of the 2005 Regulations, contending that the prosecution were obliged to satisfy the Court that an element of intent had existed on their part. The District Judge, having heard these arguments, adjourned the matter once again until the 10 th of April 2008.
8. On the 10 th of April 2008, the District Judge decided, on the basis of the case-law and the relevant legislative provisions, that the presumption in favour of a mens rea element to the criminal offence had not been rebutted. She went on to conclude that since no evidence of intention had been adduced by the prosecution, the Court could only dismiss the charges against the respondents.
9. The appellant requested that the District Judge should seek a determination from this Court as to the correct construction of the 2005 Regulations. This appeal by way of case stated was therefore certified by her on the 23 rd of July 2008.
10. The appellant submits that the learned District Judge erred in law in ascribing a mens rea element to the offence under Regulation 4(3) of the 2005 Regulations. This, he contends, is something which is not mandated by the explicit terms of the provisions in question. He argues that the importing of such a requirement, to be proven beyond reasonable doubt before any conviction can be secured, would have the effect of completely neutralising the legislation. In the appellant's submission, it would be nigh on impossible to establish in any given case, to the requisite standardof proof, that an accused person had actually intended that his or her livestock should graze on protected lands.
11. The appellant further contends that there is a significant public interest in ensuring that the 2005 Regulations are complied with in full, since they are a necessary aspect of the State's obligations under European Law. He submits, therefore, that a moral imperative exists to ensure that farmers should not breach the legislation. The appellant asserts that these aspects of the 2005 Regulations serve to further accentuate the case for a strict liability construction of the provisions, in line with other regulatory offences. The effect of such an interpretation would not, in his view, have the effect of placing an overly onerous burden on livestock owners who are made clearly aware of the conduct being prohibited.
12. The respondents argue that the literal meaning of the regulations clearly imports a requirement of mens rea for the performance of the activity or operation of grazing. They further argue that the application of strict liability does not arise by necessary implication,...
To continue reading
Request your trial
-
National Transport Authority v Beakhurst
...of the law has been accepted in subsequent Irish decisions: see Minister for the Environment, Heritage and Local Government v. Leneghan [2009] 3 IR 727. In the course of his judgment, Keane J. cited the following dicta of Dickson J.: “I conclude, for the reasons which I have sought to expre......