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Penalty Points for Fishermen Unconstitutional

On the 12th of December the Supreme Court handed down Judgement in the challenge taken by Paddy O’Sullivan to the Statutory Instrument (SI) of 2014 introducing the Penalty Points for Fishermen.

Conways Solicitors acted for Mr. O’Sullivan.

The High Court had struck the SI down as being unconstitutional for a number of reasons, one was the fact that it was in breach of what is acceptable for a Minister to introduce by way of delegated secondary legislation and the second reason was because of the fact that the procedures were so unfair as to be unacceptable to Fishermen’s constitutional rights.

 

On the 3rd of October the Supreme Court heard the appeal which was brought by the Minister.

On the 12th the Supreme Court upheld the decision of the High Court although it did so on narrower grounds.

Effectively, the Supreme Court felt that the EU Regulation had specified enough as to what the Minister needed to do, which meant that the Minister had not carried out a solo run on the penalty points issue and therefore delegated legislation was permissible in principal.

 

However, the Supreme Court went on to rule that the manner in which the operation of the Penalty Points scheme was set up was offensive to basic constitutional rights of the citizens of Ireland.

 

The Court pointed out that the presumption that someone had committed an offence and had to dis-prove this presumption was unconstitutional. No one should have to disprove an accusation. After all, that is all it should be, an accusation and not a statement of fact.

 

As a consequence of this presumption, and as expressly stated in the SI, the burden of proof had been transferred to the Fisherman which the Court held was unacceptable.

The Court also found that the Minister’s attempt to rubber stamp SFPA decisions on whether or not a ‘serious offence’ had been committed was unacceptable. The fact that an accused has no effective right of appeal to either the appeals officer or the High Court (you could only appeal on a point of law and not on a point of factual finding) was equally offensive.

 

The Supreme Court did look at the issue of being found not guilty in a Court of Criminal Law and still having penalty points and found that this was permissible.

 

Interestingly, the SFPA did try to argue in the Supreme Court that the Court should not be too concerned about the rigid set up of the Regulations as in practice things were much looser and ‘friendlier’. The Supreme Court absolutely rejected such assurances. The Supreme Court felt that the Regulation must be presumed to operate in the manner it was drafted.

What is more likely to be the real issue, is the low threshold that the SFPA will apply to what constitutes a ‘serious offence’.

Recent history shows that the Authority will encourage the Minister to set up this ‘out of Court’ system as soon as possible.

At the time of writing the Authority has thrown out all log book data to do with the Dublin Bay prawn porcupine bank fishery because it does not believe that Fishermen are recording the true catches and the logbooks are ‘unreliable’. If the Authority can disregard Community Law, Domestic Law and 40 years of custom and practise, what chance does the fishing community have of there being a fair assessment as to what constitutes a ‘serious offence’?

The Minister, and the broader Political Community, would seriously want to consider what, if any, role the SFPA would have in any such a process.

Dermot Conway

Conways Solicitors

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