Fishing penalty points system struck down in High Court

Case brought by licence-holder and master of Tea Rose trawler following its detention in 2015

The High Court has made formal orders striking down as unconstitutional provisions of a penalty points system for fishermen who engage in illegal, unreported or unregulated fishing.

Mr Justice Tony O’Connor, who made the orders, was told, since he struck down the law in January, the Minister for the Marine had replaced the regulations which cover the penalty points system.

Mr Justice O’Connor previously found that the Minister, in exercising powers allowing this State to give effect to EU regulations, failed to recognise the absence of principles and policies to introduce a novel way of determining serious infringements through the imposition of penalty points on the holders of fishing licences.

The penalty points system, introduced in 2014, provides for eventual suspension of fishing licences and ultimately for complete withdrawal of the licence, depending on how many points a vessel incurs for illegal fishing.

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The case was brought by the licence-holder and the master of the Tea Rose trawler after it was detained by sea fisheries protection officers at Castletownbere, Co Cork, on April 7th, 2015.

Request refused

Patrick O’Sullivan, holder of the licence, and his brother Cathal, the master of the vessel, brought the challenge after the fisheries protection authority refused a request to defer the enactment of the penalty points process for their boat’s licence.

This was in circumstances where a District Court prosecution against Cathal O’Sullivan for alleged under-recording of his catch was pending and could take two years to conclude.

The brothers sought an injunction preventing implementation of the Domestic Points Regulations system introduced under the Common Fisheries Policy.

They claimed the system went beyond the principles and policies of the relevant EU regulations for a number of reasons, including reversing the burden of proof onto the fisherman.

The Minister and the fisheries protection authority disputed the claims.

When the case returned before Mr Justice O’Connor on Wednesday, he was told by Oisin Quinn SC that the Minister had revoked the original statutory instrument introducing the regulations and signed a new instrument in its place.

On the application of Colm Ó hOisin SC, for the plaintiffs, the judge made orders that the original statutory instrument was made outside the Minister’s power and was unconstitutional.