Montemuino v Minister for Communications, Marine and Natural Resources and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Feeney
• Judgment Date: 30 May 2008
• Neutral Citation: [2008] IEHC 157
• Court: High Court
• Date: 30 May 2008

[2008] IEHC 157

THE HIGH COURT

No. 936 J.R./2006

Montemuino v Min for Communications, Marine & Natural Resources & Ors

JUDICIAL REVIEW

BETWEEN

JUAN M. MONTEMUINO

APPLICANT

AND

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

RESPONDENTS

FISHERIES (CONSOLIDATION) ACT 1959 S234(1)

EEC REG 2847/93 ART 6

EEC REG 2807/83 ART 1(a)

SEA FISHERIES (CONTROL OF CATCHES) REGS 2003 SI 345/2003 ART 4

FISHERIES (CONSOLIDATION) ACT 1959 S224B

FISHERIES (AMDT) ACT 1983 S5

FISHERIES (CONSOLIDATION) ACT 1959 S232

CRIMINAL PROCEDURE ACT 1967 S4B(1)(a)

EEC REG 3760/92

EEC REG 2847/93 ART 1

EEC REG 2847/93 ART 6.2

EEC REG 2847/93 ART 31

EUROPEAN COMMUNITIES ACT 1972 S3(1)

BROWNE v AG & MIN MARINE 2003 3 IR 205 2003/7/1351

FISHERIES (CONSOLIDATION) ACT 1959 S224B(3)

CONSTITUTION ART 40.1

CONSTITUTION ART 38

FISHERIES (CONSOLIDATION) ACT 1959 PART XII

TREATY ESTABLISHING THE EUROPEAN COMMUNITY ART 12

CONROY v AG 1965 IR 411

ROAD TRAFFIC ACT 1961 S49

GAMING & LOTTERIES ACT 1956 S4(1)(c)

CARTMILL v IRELAND 1987 IR 192

KOSTAN v IRELAND 1978 ILRM 12

HEANEY v IRELAND 1994 3 IR 593

OFFENCES AGAINST THE STATE ACT 1939 S52

EMPLOYMENT EQUALITY BILL 1996, IN RE 1997 2 IR 321

SCHERMERS & WAELBROECK JUDICIAL PROTECTION IN THE EUROPEAN COMMUNITIES 6ED 2001 100 PARA 180

TRIDIMAS GENERAL PRINCIPLES OF EU LAW 2ED 2006 234

MIN JUSTICE v WHELAN; MIN JUSTICE v LYNCH UNREP IRVINE 5.10.2007 2007 IEHC 374

OSMANOVIC v DPP & ORS 2006 3 IR 504

SCHERMERS & WAELBROECK JUDICIAL PROTECTION IN THE EUROPEAN COMMUNITIES 6ED 2001 102 PARAS 182 - 184

EEC REG 2847/93 ART 31.3

EEC REG 2847/93 ART 31.2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

CONSTITUTION ART 38.5

CONSTITUTION ART 38.2

CONSTITUTION ART 38.3

CONSTITUTION ART 38.4

TREATY ESTABLISHING THE EUROPEAN COMMUNITY ART 234

CONSTITUTIONAL LAW

Statute

Validity - Community law - Principle of proportionality - Fisheries - Indictable offence - Whether forfeiture penalty - Whether forfeiture proportionate sanction - Whether impugned provision unconstitutional - Whether impugned provision contrary to Community law - Kostan v Ireland [1978] ILRM 12 followed - Sea Fisheries (Control of Catches) Regulations 2003 (SI 345/2003) - Fisheries (Consolidation) Act 1959 (No 14), s 224B - Constitution of Ireland 1937, Articles 40.1, 38, 38.5 and 38.2 - Council Regulation (EEC) 2847/93 - Commission Regulation (EEC) 2807/83 - Claim dismissed (2006/936JR - Feeney J - 30/5/2008) [2008] IEHC 157

Montemuino v Minister for Communications

Facts: The fishing catch of the applicant was forfeited in its entirety for failing to log a species of catch. The value of the prohibited catch was approximately Eur600, while the total catch value as forfeited was worth Eur31,000. The applicant was charged with offences pursuant to the Fisheries Consolidation Act 1959, as amended and the Fisheries (Amendment) Act 1983 which purported to implement a Council Regulation. The applicant contended that the penalty of a fine up to Eur100,000 and mandatory forfeiture of all of any of a catch was unconstitutional and violated the principle of proportionality.

Held by Feeney J. that mandatory forfeiture was expressly envisaged by the Council Regulation. The mandatory consequential order did not give rise to unfair or unjust sentencing. No unconstitutionality arose and no reference to the Court of Justice was necessary pursuant to Article 234 EC.

Reporter: E.F.

Factual background

2 2 1.1 The applicant in this case is a Spanish national and fisherman and was acting as the master of an Irish sea fishing boat the M.V. Ocean Enterprise in December 2005. At that time the M.V. Ocean Enterprise was registered in the port of Tralee and was owned by Mr. Patrick Browne who had leased the boat to Mr. Brendan Rogers.

3 3 1.2 On the 8 ^th December, 2005 the M.V. Ocean Enterprise was boarded by sea fishery protection officers as part of a routine inspection of fishing vessels. Arising out of the inspection the sea fishery officers formed the view that there had been a breach of the Fisheries (Consolidation) Act, 1959 as amended and the M.V. Ocean Enterprise was detained by court order for a period of 48 hours. A further order detaining the vessel was made on the 10 ^th December, 2005 under the provisions of s. 234 (1) of the Fisheries Acts. On the same day a bank draft in the sum €88,000 wasproduced by Mr. Brendan Rogers, the lessee of the said vessel by way of security. The said sum by way of security was for any anticipated fine and expenses and also covered the estimated value of the entire catch. Upon the payment of the said draft the vessel was released from detention.

4 4 1.3 Initially the applicant, as master of the said vessel, was charged with two offences namely catching a fish species known as Fork Beard without a licence when a deep sea licence was required and secondly, failing to record the catch of Fork Beard in the official logbook. Ultimately criminal proceedings were brought only in respect of the second charge. On the 10 ^th December, 2005 the applicant was arrested and charged with the offence, namely "that on the 8 ^th December, 2005 within the exclusive fishery limits of the State when M. Montemuino being the master of the Irish registered sea fishing boat Ocean Enterprise Reg. No. T115 did fish in contravention of article 6 of the Council Regulation (EEC) No. 2847/93 as amended, and article 1 (a) of Commission Regulation 2807/83, as amended, by failing to fill in the logbook of the operations of the said sea fishing boat (in that you did fail 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 ( S.I. No. 345 of 2003) contrary to s. 224 B 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".

5 5 1.4 On the 22 ^nd February, 2006 the applicant was formally charged in respect of the offence outlined in the previous paragraph and the said charge was laid pursuant to s. 4 B (1) (a) of the Criminal Procedure Act, 1967. On the 3 ^rd May, 2006 the applicant was sent forward for trial from the District Court to Tralee Circuit Criminal Court. Thereafter the applicant commenced these judicial review proceedings and theapplicant's trial on indictment has been adjourned from time to time pending the determination of these proceedings.

6 6 1.5 There is no dispute in relation to the central facts giving rise to these proceedings. The applicant is facing one criminal charge on indictment under the provisions of the Fisheries (Consolidation) Act, 1959 as amended. That charge concerns the failure to record in the logbook of the operations of the M.V. Ocean Enterprise a quantity of a fish known as "the Greater Fork Beard", caught and retained on board. That species of fish is a non quota species but pursuant to the relevant regulations and in the particular Commission Regulation (EEC) No. 2807/83 there was an obligation in respect of any quantity of such species caught and kept on board in excess of fifty kilograms live weight to be recorded and entered in the vessels logbook. The logbook of the vessel did not contain any entry in respect of the Fork Beard which, was in fact on board the vessel on the 8 ^th December, 2005. It is common case that the total value of the catch on board the vessel on that date was €31,057 and that the greater Fork Beard portion of that total catch had a value of some €600. Indeed it is stated in the affidavit to ground this application, sworn by Dermot Conway, at paragraph 9 as follows:-

"I say that my instructions from the applicant are that he accepts the facts as alleged against him in the book of evidence, and would in the normal course of events intend to plead guilty to the charge against him."

7 7 1.6 On the 8 ^th day December, 2005 there was no fishing gear on the M.V. Ocean Enterprise. The applicant has been charged, on indictment, with one offence contrary to s. 224 B 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. If convicted on indictment under that section the applicant herein is liablepursuant s. 224 B (3) of the Fisheries (Amendment) Act, 1983 to a fine not exceeding ?100,000 (Ç126,973.80) and as a statutory consequence of such conviction to forfeiture of all or any fish and/or fishing gear found on the boat to which the offence relates.

8 8 1.7 The agreed facts are that the value of the greater Fork Beard caught and maintained on board the said vessel had an approximately value of €600 and that the value of the entire catch of fish on board amounted to €31,057. The criminal charge with which the applicant has been prosecuted may only be prosecuted on indictment and carries with it, in the event of a conviction, as a statutory consequence the mandatory forfeiture of all fish found on board the vessel. The issue of the forfeiture of the fishing gear does not arise as no fishing gear was present.

The Legislation

2 2 2.1 The Treaty of Rome provides that the European Communities' activities include a common policy in respect of fisheries. This has resulted in measures being adopted relating to the conservation of the resources of the sea which belong to the Community. The Community institutions exercise exclusive powers over the community fisheries policy. The Community has established a control system applicable to the common fisheries policy and as part of that control introduced a regulation binding in...