Conways Solicitors successful in Challenge to Penalty Points
Yesterday, the 15th of January 2016, saw the High Court Strike down the penalty points signed into law by Minister Simon Coveney under Statutory Instrument SI 3 of 2014 entitled ‘European Union (Common Fisheries Policy) (Points System) Regulations 2014’.
The vessel owner and the Master of the Vessel the Tea Rose (paddy and Cathal O’Sullivan respectively) brought the challenge to the Penalty points regime after the Fishing Vessel the Tea Rose was detained in or around the 8th of April 2015.
Not withstanding the fact that the Master was charged with alleged fishing offences and a plea of not guilty indicated, the Sea Fisheries Protection Authority (SFPA) refused to wait and see what happened with the Criminal process, and insisted that they had to proceed under the SI ‘as soon as may be’.
An application was immediately made before the High Court in Dublin to get an injunction prohibiting the SFPA from starting the penalty points procedure. In addition, the Court was asked to not only stop the procedure, but the Court was also asked to examine the procedures that were created under the 2014 SI and in addition it was questioned as to whether or not the Minister had exceeded the authority given to him under the 1972 European Communities Act which allows a Minister to sign an SI to bring a European Regulation into Irish law without having to pass an act of the Oireachtas.
The Minister and the SFPA objected to the application and the matter came to hearing in front of Justice O’Connor.
In the High Court in Dublin yesterday Justice O’Connor delivered Judgement.
In his Judgement Justice O’Connor made a number of findings as against the 2014 SI:
1. That the SI concentrates too much power in the SFPA
2. There was a limited opportunity for a fisherman to have access to the Courts
3. that the SFPA’s combined role of ‘investigation, detention and assessment’ was of concern and was ‘new to licencing in Ireland’.
4. no explanation by the Minister as to ‘why traditional processes were not adopted’. This was in reference the procedures as set out in the SI for an appeal.
5. The Court found it difficult to understand why the Penalty Points process could not wait until the Criminal Trial was concluded.
6. The Court did not accept that any delay in waiting was problematic for the Minister.
7. The Court found that the the ‘Eu Regulations do not require a licence holder to bear the burden pf proving that a serious infringement has not occurred’. The Court went on to state that ‘the Minister has not explained why this provision was inserted and the Court cannot find any specific principal or policy in the relevant EU regulations to justify what may be categorized as minimizing the burden to establish a serious infringement’.
8. the Court in examining the use of an SI (secondary legislation) ‘there is no requirement for Member States to limit recourse to the courts on appeal or otherwise’.
9. the EU regulations did not require Ireland to abandon ‘domestic norms’ as to how we administer Justice or sanctions and the norms that we afford people who disagree with the proposed sanction or charge by way of an effective appeal etc.
The effect of the Judgement is that the Penalty Points regime as signed into Law by the Minister and operated by the SFPA is at an end.
Cases in which points had been given must now be revisited and the Sea Licencing Authority will have to undergo a review process to remove all penalty points.
Affected licence holders will not also have to review their position as to whether or not they bring actions for damages as a result of vessels being tied up and the effect the points had on the value of capacity for the time frame involved.
Back to the drawing board
The Minister will now have to go back and start from scratch in order to comply with Ireland’s requirements to implement the relevant EU Regulations.
The industry now has a chance to ensure that a proper consultation process if undertaken as is required by the Common Fisheries Policy in the first place.
If there are any questions please contact:
contact Dermot at 0214901000 or firstname.lastname@example.org