Court upholds decision quashing penalty points system for Irish fishermen

While the regulations governing the system were changed in 2016, the State had appealed the High Court orders in relation to challenges by the licensees of two fishing vessels who had faced penalties under 2014 regulations.

Mr Justice Donal O’Donnell, on behalf of a five-judge Supreme Court, upheld the High Court decision in the first case which was brought in relation to fair procedures and also upheld the decision in the second case on narrower grounds than the High Court.

The first related to the Cradyden Fishing Company- licensed "Anders Neel" vessel which was boarded by fishery protection officers at Ros a Mhil, Co Galway, in December 2014, when a 126.8 per cent under-recording of a whiting catch was detected.

The second related to the "Tea Rose", licensed to brothers Patrick and Cathal O Sullivan, which was boarded at Castletownbere, Co Cork, on April 7, 2015. Cathal O’Sullivan, as master of the vessel was later charged at Bantry District Court with under-recording the catch of hake, cod, haddock and pollack.

In both instances, the licencees faced the possibility of having penalty points attached to their licences under 2014 regulations brought in under the Common Fisheries Policy to deter illegal fishing.

This system, administered by the Sea Fisheries Protection Authority (SFPA), provides for eventual suspension of fishing licences and ultimately for complete withdrawal of the licence depending on how many points a licensee incurs.

Crayden brought a High Court challenge claiming the SFPA was required to carry out this process in accordance with fair procedures.

The O’Sullivans brought separate proceedings challenging the entire constitutional basis of the 2014 regulations.

In both cases, heard separately, High Court judges found in favour of Crayden and the O’Sullivans and against the SFPA, the Minister for Marine and the State.

The defendants appealed and both cases were heard together before the Supreme Court.

In the Crayden appeal, Mr Justice O’Donnell he said while the case was technically moot, it was by definition a case of general public importance and should be determined.

The SFPA process, involving initially a determination panel for assignment of penalty points, can be followed by an appeal to an appeals officer if the licensee chooses.

Mr Justice O’Donnell said although the 2014 regulations "use the language of appeal" it was apparent there was, in truth, "only one substantive decision making process at least before an independent body".

While the State bodies contended there that fair procedures were accorded under this system, the judge said these were "minimal procedures" which the 2014 regulations provided,, They set up, in effect, a single decision making process with the onus of disproof on the licence holder which "falls short of the requirement of fair procedures".

In the O’Sullivan case, the judge said the High Court addressed both the substance and procedure of the 2014 regulations.

While, on the surface, since the new 2016 regulations were also introduced by statutory instrument and not primary legislation, they "would appear to share the frailty" of the 2014 regulations, he said.

However, the European regulations (allowing for the introduction of national regulations) did not specify precisely if a member state is to do so by primary legislation or by subordinate legislation or instrument under the European Communities Act, he said.

The matters dealt with in the (Irish) regulations were incidental, supplemental and consequential to the provisions of the European regulations.

Accordingly, he did not consider the that in principle the establishment of penalty point procedures under the 2014 regulations contravened the Constitution and he would therefore allow the State’s parties’ appeal in that respect.

However, he upheld the High Court declaration that those regulations were invalid on grounds they did not comply with fair procedures.