The Supreme Court dismissed an appeal by the Attorney General, the Minister for Marine and Natural Resources and Ireland, affirming a High Court order that prohibited the prosecution of fisherman Vincent Browne on two driftnet charges. The Court held that the Minister had no power under section 223A of the Fisheries (Consolidation) Act 1959, as amended, to create the indictable offence through the Sea Fisheries (Driftnets) Order 1998.
The ruling addressed a preliminary issue in a criminal case; it did not determine whether Browne committed the alleged fishing offences. He had pleaded not guilty, and the Circuit Court proceedings had been adjourned while he pursued judicial review.
Browne was master of the Irish-registered fishing vessel MFV Antonia. He said he left Dingle, County Kerry, on 15 June 2000 to fish for tuna with a permit. After the vessel was boarded at sea on 24 June, officers measured two nets at 2.545 kilometres and 4.554 kilometres. Browne faced charges alleging that he used prohibited driftnets and kept one aboard, contrary to European rules and the 1998 order. The allegations were not adjudicated in this appeal.
The High Court granted an order prohibiting the prosecution and declared the relevant reliefs ultra vires. The State appealed, arguing, among other things, that the European regulations were directly applicable and that the Minister could rely on section 223A to make the order.
In a judgment delivered by Denham J on 16 July 2003, the Supreme Court concluded that section 223A did not state in clear terms that the Minister could create an indictable offence when implementing European Community law. The Court noted that section 3(3) of the European Communities Act 1972 expressly barred regulations made under that Act from creating indictable offences, while section 224B of the Fisheries Act expressly provided for such offences in a different setting, within the State’s exclusive fishery limits. That provision could not supply authority for an offence on the high seas.
The Court’s conclusion was limited to the Minister’s authority to create the indictable offence by this route. It dismissed the appeal and affirmed the prohibition against prosecuting Browne on the charges in Castletownbere charge sheets 27 and 28 of 2000. The judgment also noted that the Oireachtas could legislate expressly to alter the relevant policy.