Rederij Kennemerland BV v Attorney General
| Jurisdiction | Ireland |
| Judge | Mr. Justice Gannon |
| Judgment Date | 09 October 1987 |
| Neutral Citation | 1987 WJSC-HC 2168 |
| Court | High Court |
| Docket Number | Judicial Reviews Numbers 19/1986 |
| Date | 09 October 1987 |
1987 WJSC-HC 2168
THE HIGH COURT
BETWEEN
AND
AND
AND
Citations:
FISHERIES (CONSOLIDATION) ACT 1959 S233(1)(g)(ii)
FISHERIES (CONSOLIDATION) ACT 1959 S233
FISHERIES (CONSOLIDATION) ACT 1959 S233(a)
FISHERIES (CONTROL OF FISH PROCESSING VESSELS) ORDER, 1986 SI 253/1986
CRIMINAL PROCEDURE ACT 1967 S12
RSC O.84 r23(2)
FISHERIES (AMDT) ACT 1978 S12
CONSTITUTION ART 34
CONSTITUTION ART 37.1
CONSTITUTION ART 40.4
FISHERIES (CONSOLIDATION) ACT 1959 S234(1)
FISHERIES (AMDT) ACT 1978 S13
PETTY SESSIONS (IRL) ACT 1851 S8
FISHERIES (CONSOLIDATION) ACT 1959 CAP II PART VIII
FISHERIES (AMDT) ACT 1978 S11
SEA FISHING (ENFORCEMENT OF EUROPEAN COMMUNITY QUOTAS) ORDER SI 57/1986
EEC REG 3721/85 ART 5
EEC REG 3777/85
FISHERIES (AMDT) ACT 1978 S11(1)(g)
FISHERIES (AMDT) ACT 1983 S4
FISHERIES (CONSOLIDATION) ACT 1959 S223(1)(g)
FISHERIES (CONSOLIDATION) ACT 1959 S234
FISHERIES (AMDT) ACT 1978 S2(2)
FISHERIES (AMDT) ACT 1978 S13
FISHERIES (CONSOLIDATION) ACT 1959 S219 PART XIII CAP I
FISHERIES (CONSOLIDATION) ACT 1959 S220
DUNNE V CLINTON 1930 IR 366
DPP V MADDEN & ORS 1977 IR 336
PEOPLE, DPP V WALSH 1980 IR 294
TRIMBOLE, STATE V GOV MOUNTJOY PRISON 1985 IR 550
FISHERIES (CONSOLIDATION) ACT 1959 S234(2)
FISHERIES (AMDT) ACT 1978 S9
CRIMINAL PROCEDURE ACT 1967 S8
RSC O.60
PETTY SESSIONS (IRL) ACT 1851 S10
PETTY SESSIONS (IRL) ACT 1851 S11
LYNCH, STATE V BALLAGH 1987 ILRM 65, 1986 IR 203
CLARKE, STATE V ROCHE 1986 ILRM 565
CONSTITUTION ART 38.1
CRIMINAL PROCEDURE ACT 1967 S13
FISHERIES (CONSOLIDATION) ACT 1959 S232
Synopsis:
DELAY
Court
Application - Detention - Authorisation - Ship's master - Detention pursuant to s.233 of Act of 1959 - Delay of 24 hours by garda before application to District Court for order pursuant to s.233A of the Act authorising detention of the master and his vessel for 48 hours - Failure to make application "as soon as may be" as required by s.233A of the Act - Order of District Justice set aside on certiorari - ~See~ Fisheries, sea fisheries - Fisheries (Consolidation) Act, 1959, ss.233A, 234 - (1986/19–21 JR - Gannon J. - 9/10/87) 1989 ILRM 821
|Rederij Kennemerland B.V. v. The Attorney General|
FISHERIES
Sea fisheries
Boat - Master - Detention - Court - Application - Delay - At 3 p.m. on 5/11/86 a Dutch refrigerator ship and a Dutch trawler were boarded and arrested, with their masters, by officers of the Naval Service in Rathmullan Harbour in the county of Donegal. At 7.20 p.m. on the same day a member of the Garda Siochana, in his capacity as a sea-fisheries protection officer, also arrested the master of the refrigerator ship and informed him that he was being detained pursuant to s.233(1)(g) of the Act of 1959 - At 3 p.m. on the next day the masters of the two boats were brought before a sitting of the District Court (which commenced on that morning) pursuant to the duty of the gardai under s.233A of the Act to apply to a District Justice "as soon as may be" for an order authorising the continued detention of the masters and their boats for a period of 48 hours - The application in respect of the master of the refrigerator ship and his vessel was dismissed at 4 p.m. but the other application was granted - Nevertheless, the master of the refrigerator ship was not released; he was kept in detention until he was re-arrested at 8.14 p.m. pursuant to a warrant, obtained at 7.15 p.m., of a peace commissioner - At 11.30 p.m. the master of the refrigerator ship was remanded in custody by the peace commissioner for an offence contrary to s.223 of the Act of 1959 - Shortly after midnight on 6/11/86 the peace commissioner made an order pursuant to s.234 of the Act authorising the detention of the master of the refrigerator ship and his vessel until the termination of certain criminal proceedings against him - Subject to the provisions of the section, section 234 enables an application to be made under that section where a boat and its master have been detained pursuant to section 233 - At the hearing of the application under s.234 in a garda station, no evidence was given to the peace commissioner to establish the detention of the refrigerator ship or the institution of such criminal proceedings, and he was not given material to enable him to consider exercising his discretion to release the master on bail; the peace commissioner signed the order sought by the gardai before the master and his solicitor appeared before the peace commissioner - On the afternoon of 7/11/86 the master of the refrigerator ship was remanded in custody by the District Court until 12/11/86, and that court returned the master of the trawler for trial in the Circuit Court on 18/11/86 for offences against the Fisheries Acts - On 10/11/86 the masters of the vessels obtained in the High Court leave to apply for judicial review of the orders made respectively by the District Justice and the peace commissioner under ss.233A and 234 of the Act of 1959 - Held that the application to the District Court on 6/11/86 in respect of the master of the trawler and his vessel had not been made "as soon as may be" as required by s.233A of the Act of 1959, that the supposed need to obtain evidence for that application and a draft of the order sought did not excuse the failure to comply with the terms of the section and that, accordingly, the order made under s.233A should be quashed on certiorari - Held that the master of the refrigerator ship had been kept in detention unlawfully after 4 p.m. on 6/11/86 in order to facilitate an application later that night to a peace commissioner for a detention order under s.234 of the Act in place of the relief refused by the District Justice on that afternoon - Held that the peace commissioner had not discharged any of the obligations imposed on him by s.234 of the Act and had merely provided the appearance of a formal compliance with the requirements of that section by signing the order, prepared in his presence, before the application was made - Held that the evidence on which the application was based should have been given in the presence of the master and his solicitor - Held, accordingly, that the orders made by the peace commissioner should be quashed on certiorari - Held that the masters of the vessels did not have a right to challenge the validity of the relevant legislation under the Constitution - Fisheries (Consolidation) Act, 1959, ss.220, 233, 233A, 234 - Fisheries (Amendment) Act, 1978, s.11 - (1986/19–21 JR - Gannon J. - 9/10/87) 1989 ILRM 821
|Rederij Kennemerland B.V. v. The Attorney General|
PEACE COMMISSIONER
Powers
Detention - Authorisation - Statutory conditions - Compliance - Application pursuant to s.234 of the Act of 1959 - Failure of peace commissioner to ensure compliance with the provisions of s.234 which enable him, in certain circumstances, to authorise the detention of a ship's master and his vessel until the termination of criminal proceedings brought against the detainee - Order of District Justice set aside by High Court on certiorari - ~See~ Fisheries, sea fisheries - Fisheries (Consolidation) Act, 1959, s.234 - (1986/19–21 JR - Gannon J. - 9/10/87) 1989 ILRM 821
|Rederij Kennemerland B.V. v. The Attorney General|
WORDS AND PHRASES
"As soon as may be"
Court - Application - Detention - Authorisation - Delay of 24 hours in making application - Application pursuant to s.233A of the Act of 1959 for order authorising detention of ship's master and his vessel for period of 48 hours - Application to District Justice not made as soon as may be - Order of District Justice set aside on certiorari - ~See~ Fisheries, sea fisheries - Fisheries (Consolidation) Act, 1959, s.233A - (1986/19–21 JR - Gannon J. - 9/10/87) 1989 ILRM 821
|Rederij Kennemerland B.V. v. The Attorney General|
Judgment of The Honorable Mr. Justice Gannon delivered the 9th October 1987.
The "Iglo Express" is a Dutch refrigerated cargo vessel which dropped anchor at Rathmullan, Co. Donegal, on the 2nd of November 1986. The master of the vessel was Dos Niedorff. It was accompanied by two Dutch fishing trawlers, namely, "Geertruid Margareta" of which the master was Arie P. Jonker and "Peer Sluis" of which the master was Pieter Stam. The owners of all three vessels are Rederij Kennemerland B.V. and Sea Trade Groningen B.V. were the charterers of the "Iglo Express".
At about 3 p.m. on Wednesday 5th November 1986 all three vessels were boarded by officers of the Irish Navy from the "L.E. Emer". Each vessel was detained upon suspicion of being involved in the offence of trans-shipment of fish from the two trawlers to the cargo vessel in breach of the regulations in statutory Instrument Number 253 of 1986 made under the Fisheries Acts, and in contravention of the provisions of the Fisheries (Consolidation) Act 1959as amended by the Fisheries (Amendment) Acts 1978and 1983. The detention of the ships was reported to the Gardai at Rathmullan and Sergeant McAteer of that Garda Station telephoned the State Solicitor at 5.10 p.m. on the 5th of November with this information for his instructions. In accordance with the instructions he received Sergeant McAteer and two other Gardai boarded a vessel each. Sergeant McAteer boarded the "Iglo Express" at 6.27 p.m. and at 7.21 p.m. he arrested the Master Dos Niedorff and the ship. He informed the master he was detaining...
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