Clarification on fish catch records may affect 60 prosecutions

Supreme Court finds law gives judge discretion on amount of fish catch and gear to be forfeit

Mr Justice Frank Clarke has described the legislation governing fishing in Ireland as “complex and highly technical”, while Mr Justice Adrian Hardiman said both Irish and EU fisheries laws “at times seem deliberately to court complexity and obscurity”. Photograph by Frank Miller/The Irish Times

Mr Justice Frank Clarke has described the legislation governing fishing in Ireland as “complex and highly technical”, while Mr Justice Adrian Hardiman said both Irish and EU fisheries laws “at times seem deliberately to court complexity and obscurity”. Photograph by Frank Miller/The Irish Times

Thu, Oct 17, 2013, 16:02

A Supreme Court decision clarifying the law related to penalties imposed for failure to fully record fishing catches may affect up to 60 other existing prosecutions.

Because the relevant law has been amended since Juan Montemuino brought his case, future prosecutions will not be affected by the five-judge court’s unanimous decision.

In separate concurring judgments today, Mr Justice Frank Clarke described the legislation governing fishing in Ireland as “complex and highly technical”, while Mr Justice Adrian Hardiman said both Irish and EU fisheries laws “at times seem deliberately to court complexity and obscurity”.

While the court rejected Mr Montemuino’s claim the disputed law is unconstitutional, it rejected arguments by the Minister for Marine and the State that the relevant section mandated the seizure of all fish and fishing gear on an offending vessel.

The court ruled the relevant section meant a sentencing judge has discretion as to the amount of fish and fishing gear that should be forfeited. In exercising that discretion, it was necessary to have regard to the importance of ensuring penalties were proportionate, it added.

Mr Montemuino, a Spanish native, was in 2005 the master of an Irish fishing vessel, the Ocean Enterprise, registered in the port of Tralee. The vessel was owned by Patrick Brown and leased from him by Brendan Rogers.

As master, Mr Monetmuino was charged with failing to record a quantity of Greater Forkbeard, a non-quota fish species, valued at €600, after fisheries officer boarded the vessel in December 2005. The value of the entire catch on board the vessel was more than €30,000. Mr Montemuino’s trial has remained on hold pending the outcome of his legal challenge.

The disputed law governed failure to record catches of fish and provided for a maximum fine of some €127,000, plus seizure of “any or all” of the catch and fishing gear on board the relevant vessel. In practice, those convicted of such offences would provide a bond in the sum matching the value of the gear.

Mr Montemuino brought a High Court challenge to the constitutionality of the law - Section 224B of the Fisheries (Consolidation) Act 1959, as inserted by Section 5 of the Fisheries (Amendment) Act 1983. That challenge proceeded in the High Court on the understanding by both sides the section meant anyone found in breach of it would automatically have all their catch and fishing gear seized. Mr Montemuino argued such a mandatory penalty was disproportionate and rendered the law unconstitutional.

After the High Court dismissed his claim, he appealed to the Supreme Court, where some of the judges queried whether the section did actually mandate seizure of all fish and fishing gear or whether a sentencing judge had discretion in that matter. The appeal was adjourned to allow the sides make submissions on that issue and later concluded.

In reserved judgments yesterday, all five judges agreed with arguments on behalf of Mr Montemuino the section allows a sentencing judge discretion as to the amount of catch and gear to be forfeited.

Given that finding, the court said the penalties met the necessary test of effectiveness and no issue arose as to the constitutionality of the section. Final orders in the case will be made later.