The master of a Spanish fishing trawler arrested off the Co Cork coast has lost a High Court bid to stop his trial on charges alleging obstruction of fisheries protection officers.
Augustin Ferradas Martinez allegedly cutting nets to release the boat's catch into the sea after the vessel was boarded.
The case centred on whether the State, in the context of the aims of the EU common fisheries policy, is entitled to prosecute such charges on indictment and to choose a penalty of mandatory forfeiture of a boat's catch and gear where such charges are proven.
Mr Justice Iarfhlaith O'Neill ruled trial on indictment and the sanction chosen was expressly mandated by the relevant EU regulation related to the common fisheries policy and an "appropriate and probably necessary" means to achieve the aims of the policy. Deterrence of future offending was an express requirement of the regulation, he noted.
He was giving his judgment dismissing proceedings by Mr Martinez aimed at preventing his prosecution before Cork Circuit Criminal Court.
The case arose after the MV Playa de Lagos, of which Mr Martinez was Master, was arrested by the Irish Navy vessel the LE
Eithneon May 31st, 2006 after being boarded and inspected.
Mr Martinez was initially charged with two summary offences of obstructing a sea fisheries protection officer by "slipping" the nets of the vessel, inferring the nets were cut to release the catch into the sea. The catch on board was valued at some €27,000.
A further charge was later brought under Section 11 of the Sea Fisheries and Maritime Jurisdiction Act 2006, which may be tried summarily or on indictment. This alleged Mr Martinez contravened an EC Regulation in allegedly obstructing inspection of his vessel, an offence carrying a penalty of mandatory forfeiture of all fish and gear on the relevant boat and a fine of up to €100,000. The State opted for trial on indictment.
Mr Justice O'Neill said the principal issue was whether Section 28.5.b of the 2006 Sea Fisheries and Maritime Jurisdiction Act, providing for the mandatory forfeiture of catch and gear, plus the procedure whereby the charges were brought on indictment, was disproportionate and unconstitutional.
He ruled the Attorney General, in choosing to proceed on indictment against Mr Martinez, was in a position similar to the DPP who had well-established discretion whether to try offences summarily or on indictment. The exercise of that discretion was non-reviewable unless bad faith could be shown and this did not arise in this case. The complaint that the charge was improper must fail, he said.
On the issue of the proportionality of the penalty of mandatory forefiture, he said this must be decided against the backdrop of the aims of the common fisheries policy. These made it imperative fisheries protection officers be able to inspect vessels fishing in the jurisdictions of member states without being frustrated by the kind of conduct alleged against Mr Martinez. In light of those aims, the sanction was proportionate.