Montemuino v Min for Communications and Others

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr. Justice Hardiman,Mr. Justice Clarke
• Judgment Date: 17 October 2013
• Neutral Citation: [2013] IESC 40
• Date: 17 October 2013
• Docket Number: S.C. No. 365 of 2008]

[2013] IESC 40

THE SUPREME COURT

Denham C.J.,

Hardiman J.,

Fennelly J.,

Clarke J.,

MacMenamin J.

365/08

365/2008

Montemuino v Min for Communications & Ors

JUDICIAL REVIEW

Between:

JUAN M MONTEMUINO

Applicant/Appellant

and

THE MINISTER FOR COMMUNICATIONS MARINE AND NATURAL RESOURCES, IRELAND AND THE ATTORNEY GENERAL

Respondents

FISHERIES (CONSOLIDATION) ACT 1959 S234(1)

EEC REG 2847/1993 ART 6

EEC REG 2807/1983 ART 1(A)

SEA FISHERIES (CONTROL OF CATCHES) REGS 2003 SI 345/2003

FISHERIES (CONSOLIDATION) ACT 1959 S224(B)

FISHERIES (AMDT) ACT 1983 S232

FISHERIES (CONSOLIDATION) ACT 1959 S224(B)(3)

CONSTITUTION ART 8

CONSTITUTION ART 34

FISHERIES (AMDT) ACT 1983 S5

DODD STATUTORY INTERPRETATION 2002 PARA 11.54

DPP v FLANAGAN 1979 IR 265

MULLINS v HARNETT & DPP 1998 4 IR 426 1998 2 ILRM 304 1998/26/10487

MAXWELL ON THE INTERPRETATION OF STATUTES 12ED

DPP v MOORHOUSE 2006 1 IR 421 2006 1 ILRM 103 2005/21/4245 2005 IESC 52

EEC REG 2847/1993

EEC REG 2807/1983

MONTEMUINO v MIN FOR COMMUNICATIONS & ORS 2009 1 ILRM 218 2008/42/9202 2008 IEHC 157

MCDONALD v BORD NA GCON (NO 2) 1965 IR 217 1966 100 ILTR 89

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD & ORS v AG 1970 IR 317

AG, PEOPLE v MURTAGH 1966 IR 361

CRIMINAL JUSTICE ACT 1964 S2

AG v JUDGE SHEEHY & BOWMAN 1990 1 IR 70 1990/1/19

FISHERIES (AMDT) ACT 1978 S2(1)

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S4

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S4(2)

FISHERIES (AMDT) ACT 1949 S12

FISHERIES (AMDT) ACT 1949 S14

INSPIRE ART CASE NO C-167/01 2003 ECR I-10155

SILVIO BERLUSCONI & ORS CASE NO C-387/02 C-391/02 C-403/02 2005 ECR I-3565

DEATON v AG & REVENUE CMRS 1963 IR 170

CONSTITUTIONAL LAW

Statute

Statutory interpretation - Fisheries - Fishing offence - Prosecution for fishing within State - Challenge to constitutionality of penalty provision - Proportionality of mandatory forfeiture of fishing gear and fish - Construction of section - Whether section required forfeiture - Whether section left discretion with sentencing judge - Double construction rule - Penal statute - Official translation - DPP (Broderick) v Flanagan [1979] IR 265; Mullins v Harnett [1998] 4 IR 426; DPP v Moorehouse [2005] IESC 52, [2006] 1 IR 421; Montemuino v Minister for Communications [2008] IEHC 57, [2009] 1 ILRM 218; McDonald v Bord nag Con [1965] IR 217; East Donegal Co-Operative v The Attorney General [1970] IR 317; The People (Attorney General) v Murtagh [1966] IR 361; Attorney General v Sheehy [1990] 1 IR 70; Inspire Art (Case C-167/01) [2003] ECR I-1155 and Silvio Berlusconi (Case C-387/02) [2005] ECR I-3565 considered - Fisheries (Consolidation) Act 1959 (No 14), s 224B(3) - Finding that section not unconstitutional; appeal refused and submissions to be made in relation to alternative relief (365/2008 - SC - 17/10/2013) [2013] IESC 40

Montemuino v Minister for Communications

Mr Montemuino was a fisherman in the process of criminal proceedings on indictment for a failure to record the quantity of forkbeard caught and retained on his ship. This was allegedly in contravention of relevant European Union regulations which laid down the rules for recording information on Member States" fishing catches. It was alleged that he was in breach of the Sea Fisheries (Control of Catches) Regulation 2003, and as such, guilty of an offence under section 224 B (3) of the Fisheries (Consolidation) Act 1959, as inserted by section 5 of the Fisheries (Amendment) Act 1983. Mr Montemuino challenged the constitutionality of this section, a challenge which failed before the High Court. He then appealed to the Supreme Court where these proceedings were heard.

This case primarily concerned the construction of section 224 B (3) of the 1959 act, which set out that fishing, or attempting to fish, in contravention of the regulations to which it refers 'shall be guilty of an offence', 'shall be liable on conviction on indictment', and, 'as a statutory consequence of the conviction, to forfeiture of all or any' fish and fishing gear to which the offence relates. Mr Montemuino"s constitutionality argument in the High Court was formed on the assumption that the section provided for mandatory forfeiture of all fish and fishing gear—which was how past authorities viewed the section—and that this non-discretionary penalty of forfeiture was unconstitutional as a result of its disproportionate nature. A question arose as to whether the section truly required a forfeiture of all fish and fishing gear, or whether it allowed appropriate discretion on the part of the sentencing judge.

Several phrases in the wording of the section fell to be construed. Held by Mr Justice Clark, the key phrase used was 'all or any' in relation to the forfeiture of fish and fishing gear. Holding that this language would not have been used were the provision to require mandatory forfeiture of all fish and fishing gear—the provision implied the existence of discretion. Additionally, it was decided that it was significant that it was a penal provision under construction. A settled principle to be applied was that, where an ambiguity arises, a penal statute should be construed in a manner favourable to the accused. As such, the use of the words 'a statutory consequence' in conjunction with 'all or any' in section 224 B (3) created such an ambiguity, and was therefore required to be construed in a way that allowed discretion as to what fish, and what fishing gear, required forfeiture. It was further decided that the interpretation of the provision did not require application of the 'double construction' rule as argued by Mr Montemuino, as the application of ordinary principles did not give rise to any constitutional difficulty.

It was held that, due to the discretionary element of the provision, that no question of consistency with the Constitution arose, and therefore, the relief sought, and the appeal, were refused.

1 JUDGMENT of Mr. Justice Hardiman delivered the 17th day of October, 2013.

2 Judgment of Mr. Justice Clarke delivered the 17th October, 2013.

3 Judgments delivered by Hardiman J & Clarke J

4 1. This is the applicant's appeal from the order of the High Court of the 18 ^th June 2008, grounded upon the judgment of that Court (the late Mr. Justice Feeney) of the 30 ^th May of that year.

5 2. The applicant is a citizen of Spain and is a fisherman by occupation. In December 2005 he was the Master of an Irish fishing vessel, the Ocean Enterprise. This vessel was registered in the port of Tralee. It was owned by Patrick Brown and was leased from him by Brendan Rogers.

6 3. The Ocean Enterprise was boarded by Fishery officers on the 8 ^th December 2005. They formed the view that there had been a breach of the Fisheries (Consolidation) Act 1959, as amended. They obtained a court order for the detention of the vessel for forty-eight hours. After that period had expired, they obtained another order for the further detention of the vessel, pursuant to s.234(1) of the Fisheries Acts. In accordance with normal procedures, a bank draft in the amount of €88,000 was produced by Brendan Rogers on the 10 ^th December 2005. This was by way of security for any anticipated fine and expenses and also covered the estimated value of the entire catch. The vessel was then released.

7 4. On the same day, the applicant as Master of the vessel was charged with fishing within the State's exclusive fishery limits in contravention of Article 6 of the Council Regulation 2847/93 as amended, and Article 1(a) of Commission Regulation 2807/83 as amended, by failing to fill in the log book of the operation of the said sea fishing vessel (in that he failed to record the true quantity of Fork Beard caught and retained on board) in contravention of Regulation 4 of the Sea Fisheries (Control of Catches) Regulations 2003 ( SI 345 of 2003), contrary to S.224B of the Fisheries (Consolidation) Act 1959, as inserted by s.5 of the Fisheries (Amendment) Act 1983 and s.232 of the Fisheries (Consolidation) Act 1959.

8 5. Fork Beard is a species of fish. In this particular case it is to be noted that the agreed value of the entire catch on the boat in question when it was boarded by the Fishery officers was over €30,000. Of this the value of the Fork Beard was only €600. It was in relation to the Fork Beard alone that an allegation of failure to record has been made.

9 6. Neither the Irish nor the European Fisheries legislation is aimed at clarity or transparency and at times seem deliberately to court complexity and obscurity. But the essence of the allegation against Mr. Montemuino is this: that he failed to record the small quantity of Fork Beard caught by the vessel of which he was Master, contrary to European Regulations which establish a control system, and lay down detailed rules for recording information on Member States' catches of fish. Therefore, he is alleged to be in breach of the Irish Fisheries Regulation, set out in the Statutory Instrument mentioned above. On this basis it is alleged that he is guilty of an offence under s.224B(3) of the Irish Act of 1959, which creates an offence of fishing in breach of the Regulations.

10 7. This Section creates an indictable offence not also triable summarily. Accordingly, on the 3 ^rd May 2006 Mr. Montemuino was sent forward for trial from the District Court to Tralee Circuit Criminal Court.

11 8. Subsequently the applicant commenced the present proceedings and his trial has been adjourned from time to time pending the outcome of these proceedings.

12 9. The species of fish to which the alleged offence relates is the Greater Fork Beard. This is a "non-quota species" but under the Commission Regulations quoted above it is alleged that there was an...