Shannon Regional Fisheries Board v Cavan County Council

• Jurisdiction: Ireland
• Judge: Keane J.,BLAYNEY J.
• Judgment Date: 30 July 1996
• Neutral Citation: [1996] IESC 7
• Court: Supreme Court
• Docket Number: [S.C. No. 48 of 1995]
• Date: 30 July 1996

SHANNON REGIONAL FISHERIES BOARD v. CAVAN CO COUNCIL

BETWEEN:

SHANNON REGIONAL FISHERIES BOARD

Complainant/Respondent

AND

CAVAN COUNTY COUNCIL

Defendant/Appellant

[1996] IESC 7

O'Flaherty, J.

Blayney, J.

Keane, J.

48/95

THE SUPREME COURT

Synopsis:

CRIMINAL LAW

Offence

Commission - Proof - Defendant - ~Mens rea~ - Relevance - Offence created by statute - Whether strict liability imposed - Charge that sanitary authority caused deleterious matter to fall into river - Deliberate escape of matter resulting from inadequate resources - Offence of strict liability - Probation of Offenders Act, 1907 (7 Edw. 7, c. 17), s. 1 - Fisheries (Consolidation) Act, 1959 (No. 14), s. 171 - Local Government (Water Pollution) (Amendment) Act, 1990 (No. 21), s. 25 - (48/95 - Supreme Court - 30/7/96) - [1996] 3 IR 267

|Shannon Regional Fisheries Board v. Cavan County Council|

LOCAL GOVERNMENT

Sanitary services

Sewage - Treatment - Disposal - River - Pollution - Sanitary authority - Sewage treatment works - Inadequacy - Statutory offence - Offence of strict liability - Probation of Offenders Act - (48/95 - Supreme Court - 30/7/96) [1996] 3 IR 267

|Shannon Regional Fisheries Board v. Cavan County Council|

LOCAL GOVERNMENT

Water

Pollution - Sewage - Treatment - Disposal - River - Sanitary authority - Sewage treatment works - Inadequacy - Statutory offence - Offence of strict liability - Probation of Offenders Act - (48/95 - Supreme Court - 30/7/96) [1996] 3 IR 267

|Shannon Regional Fisheries Board v. Cavan County Council|

Citations:

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52(1)

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

FISHERIES (AMDT) ACT 1962 S2

FISHERIES ACT 1980

LOCAL GOVT (WATER POLLUTION) (AMDT) ACT 1990 S28

LOCAL GOVT (WATER POLLUTION) ACT 1977 S3

PUBLIC HEALTH (IRL) ACT 1878 S23

FISHERIES (CONSOLIDATION) ACT 1959 S3

PROBATION OF OFFENDERS ACT 1907 S1

ALPHACELL LTD V WOODWARD 1972 AC 824

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

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

LOCAL GOVT (WATER POLLUTION) ACT 1977 S1

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

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

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

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

PUBLIC HEALTH (IRL) ACT 1878 S17

MAGUIRE V SHANNON REGIONAL FISHERIES BOARD 1994 3 IR 580

BLACKSTONES COMMENTARIES ON THE LAWS OF ENGLAND (1809) BOOK IV 15ED 21

WARNER V METROPOLITAN POLICE COMMISSIONER 1968 2 AER 356

SHERRAS V DE RUTZEN 1895 1 QB 918

MCADAM V DUBLIN UNITED TRAMWAYS CO LTD 1929 IR 327

R V EWART 1905 25 NZLR 709

WILLIAMS CRIMINAL LAW 2ED 1961

SWEET V PARSLEY 1970 AC 132

WOOLMINGTON V DPP 1935 AC 462

SMEDLEYS LTD V BREED 1974 AC 839

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

LIM CHIN AIK V REG 1963 AC 160

R V CITY OF SAULT STE MARIE 1978 85 DLR 3d 161

PROUDMAN V DAYMAN 1941 67 CLR 536

R V HICKEY 1976 29 CCC 2d 23

LOCAL GOVT (WATER POLLUTION) (AMDT) ACT 1990 S32(1)

CHARLETON CRIMINAL LAW : CASES & MATERIALS

PUBLIC HEALTH (IRL) ACT 1878 S19

WILLIAMS TEXTBOOK OF CRIMINAL LAW 1983

1 JUDGMENT delivered the 30th day of July, 1996by Keane J.

2 The facts in this case as found by the District Judge are fully set out in the judgment of Blayney L.

3 Section 171 (1) of the Fisheries (Consolidation) Act, 1959, (hereafter "the 1959 Act") so far as material providesthat:

"(1) Any person who"

4 ...(b) 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...."

5 By virtue of s.24 of the Local Government (Water Pollution) (Amendment) Act, 1990, the penalty for a conviction on indictment of an offence under s.171 of the 1959 Act has been increased to a fine of £25,000 or five years imprisonment or both.

6 Section 3 of the Local Government (Water Pollution) Act, 1977(hereafter "the 1977 Act") created a new offence of causing or permitting any polluting matter (which is defined in s.l of the 1977 Act) to enter water. Section 3 (1) (b) of the 1990 Act (which replaced s.3 (3) of the 1977 Act) provides that:

"It shall be a defence to a charge of committing an offence under this section for the accused to prove that he took all reasonable care to prevent the entry of water to which the charge relates by providing, maintaining, using, operating and supervising facilities, or by employing practices or methods of operation, that were suitable for the purpose of such prevention."

7 It would appear that it was originally intended by the legislature that these provisions should replace s.171 of the 1959 Act, since s.34 (c) of the 1977 Actpurported to repeal that section. Since, however, it was never brought into operation and was itself repealed by s.30 of the 1990 Act, s.171 remains in force and, as already noted, the penalties in respect of an offence under that provision have been significantly increased.

8 Three provisions of the Public Health (Ireland) Act 1878 are also relevant. Section 17 provides that:

"Every sanitary authority... shall cause to be made such sewers as may be necessary for effectually draining their district for the purposes of this Act."

9 Section 23 provides that:

"The owner or occupier of any premises within the district of a sanitary authority shall be entitled to cause its drains to empty into the sewers of that authority on condition of his giving such notice as may be required by that authority of his intention so to do and of complying with the regulations of that authority in respect of the mode in which the communications between such drains and sewers are to be made, and subject to the control of any person who may be appointed by that authority to superintend the making of suchcommunications."

10 Section 19 provides that:

"Nothing in this act shall authorise any sanitary authority to make or use any sewer, drain, or outfall for the purpose of conveying sewage or filthy water into any natural stream or watercourse, or into any canal, pond, or lake until such sewage or filthy water is freed from all excrementitious or other foul or noxious matter such as would affect or deteriorate the purity and quality of the water in such stream or watercourse, or in such canal, pond or lake."

11 The provisions of s. 171 of the 1959 Act as amended were considered by Lynch J, in Maguire v. Shannon Regional Fisheries Board, [1994]3 IR 580. In that case, the District Judge had found that the appellant, who was the proprietor of a piggery adjacent to the Finaway River, had taken all reasonable steps to prevent an accident which occurred as a result of which whey flowed into the river. Lynch J, held that the offence created by s. 171 was an offence of "strict liability" in respect of which the prosecution were not obliged to establish a "guilty mind" on the part of the Appellant or, to give it its legal label, mens rea.

12 In the present case, the Appellants submitted in the High Court that the entry of deleterious matter in the form of inadequately treated sewage into the Pound stream was not the result of the absence of reasonable care on their partbut of the fact that the provision of the funds necessary to provide an adequate treatment plant had not been sanctioned by the Minister for the Environment. That submission was rejected by Murphy J, who considered that he should follow the decision in Maguire v. Shannon Regional Fisheries Board.

13 If the conviction of the Appellants in the present case were justified by proof that they committed the prohibited act constituting the actus reus of the offence, there can be no doubt that a conviction would be properly recorded. The Appellants unquestionably caused or permitted deleterious matter, in the form of inadequately treated sewage, to fall into the waters of the Pound stream and did so knowing that they were committing an act prohibited by the statute.

14 The question, however, arises in this case as to whether, having regard to the traditional insistence of the criminal law that there should be no conviction in the absence of a guilty mind, it would have been a defence for the Appellants to establish as a matter of probability that they had taken all reasonable steps open to them to prevent the deleterious matter entering the waters. That depends in turn on whether there exists in the law what has been described as a "halfway house" between those crimes in which the prosecution must establish mens rea and those of "strict liability" or (as it has sometimes been called) "absolute liability", in respect of which proof of the commission of the prohibited act is sufficient and the state of mind of the accused is irrelevant. In view of the importance of the issue involved and the divergence of view which has emerged in different common law jurisdictions, it might behelpful at the outset to consider how the law has evolved to its presentstate.

15 In the case of what have been sometimes describe as "true crimes" -murder, rape, assault, theft and the like - the law has always required proof by the prosecution of mens rea. It was not enough to show that the accused had acted negligently: intention or recklessness in the commission of the offence was an essential ingredient. Blackstone epitomised the concept in these words:

"To constitute a crime against human laws, there must be, first, a vicious will; and, secondly, an unlawful act consequent upon such vicious will...."

16 [Commentaries on the Laws of England. [1809], Book IV 15th edtn., p.21.]

17 Since he wrote, however, there has developed in all the common law countries a vast range of statutory offences, which have conveniently been described as "public welfare offences", in respect of which the courts have recorded convictions although it could not be said that the accused person acted with the "guilty mind" of the true...