Thursday 8 December 2016

Manner in which penalty points were imposed on fishing boat contrary to fair procedures, High Court declares

Tim Healy

Published 26/01/2016 | 16:12

The High Court, Dublin
The High Court, Dublin

THE High Court has declared the manner in which penalty points were imposed on the licence of a sea fishing vessel over an under-recorded catch was contrary to fair procedures.

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Ms Justice Iseult O'Malley's decision, affecting a company which owns a vessel called the "Anders Nees", followed another High Court ruling less than two weeks ago striking down the entire penalty point system for fishing vessels.

Penalty points were introduced in 2014 under the EU Common Fisheries Policy regulations to deter illegal, unreported or unregulated fishing.

Once a vessel gets 18 points, the licence is suspended to two months and it rises on a graduated scale to a year's suspension for 72 points. If it gets 90 points, the licence is permanently withdrawn.

In the recent court decision invalidating the entire system, Mr Justice Tony O'Connor said the scheme introduced by the Minister of the Marine does not require that established systems for independent adjudication and recourse to the courts can be ignored.

Mr Justice O'Connor is to make final orders later this week in that case, involving the trawler, the "Tea Rose", which was detained by fishery protection officers in April 2015.

In the meantime, Ms Justice O'Malley delivered her judgment in the case taken by the firm which owns the Anders Nees, the Crayden Fishing Company.

She said as there was no challenge to the validity of the regulations in this case, she was going to proceed with her judgment on the question of fairness of procedures.

She said the Anders Nees was inspected by fishery protection officers on December 2, 2014, after it returned to port.  Behind some steel shuttering in the hold,  a large quantity of unboxed fish was found in a compartment behind it.

The master of the boat admitted the fish was additional to what had been recorded in the logbook and following further examination, it was clear there had been an under recording of whiting by 126.8 per cent and over recording of all under species, she said.

That amount exceeded the entire December quota for whiting in what was the first two days of the month.

The master later told officers he had not expected to get so much fish so quickly and had been trying to spare some quota for the following week.

Later, the vessel owners were told they would be getting 12 penalty points for a number of serious infringements of the regulations.

The company appealed that to an appeals officer established under the scheme and also brought High Court judicial review proceedings.

It was claimed that the process whereby points are imposed was a breach of fair procedures because of the company had no opportunity to be heard before a panel, which determines the number of points to be imposed, has made its decision.

Even though there is an appeal procedure available, the company said it was entitled to fair and proper determinations by the first panel as well as by an appeals officer.

The Minister and the Sea Fisheries Protection Authority argued the licence holder does have the right to be heard at appeal stage. The law does not require that right be afforded at the preliminary phase, it was stated.

Ms Justice O'Malley said, in her view, it is necessary to inform a licence holder that a panel will be convened to assess evidence of alleged infringements and whether to assign points to the licence.

The licence holder should be given an opportunity to make representations in regard to statutory criteria, she said.

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