The Supreme Court dismissed a fisherman’s appeal over a fisheries penalty provision, ruling that it allows a trial judge to order forfeiture of all or part of a vessel’s catch or fishing gear following conviction. It does not require forfeiture of everything aboard.
The appeal was brought by Juan M Montemuino, a Spanish citizen who was master of the Irish fishing vessel Ocean Enterprise. The case arose after fishery officers boarded the vessel on 8 December 2005. They alleged that its logbook did not record the true quantity of Greater Fork Beard caught and retained on board.
The judgment said the alleged failure concerned that species alone. Its value was €600; the agreed value of the full catch was more than €30,000. The allegation was that more than 50 kilograms live weight of the non-quota species had to be recorded. These were uncontroverted background facts in the judgment, while the alleged offence itself remained for trial.
Montemuino was charged on 10 December 2005 and sent forward from the District Court to Tralee Circuit Criminal Court on 3 May 2006. His criminal trial was adjourned pending the judicial review proceedings. The Supreme Court appeal concerned the High Court’s rejection of his challenge to the constitutionality of section 224B(3) of the Fisheries (Consolidation) Act 1959.
The challenge rested on the argument that conviction required mandatory forfeiture of all fish and fishing gear found on the vessel, a penalty Montemuino said could be disproportionate to the alleged offence. The Supreme Court itself raised the question of whether the section instead gave the trial judge a choice between forfeiting everything and forfeiting some of it.
In a judgment delivered by Hardiman J on 17 October 2013, the court interpreted the words “all or any” as creating that discretion. It held that the trial judge must choose whether to order forfeiture of all or only some of the fish or gear, based on the facts and circumstances of the offence and the offender. The court also said the wording did not permit no forfeiture at all following conviction.
The judgment noted that the official Irish translation did not contain the English phrase “all or any” and discussed its different wording. It treated the English text as the Act’s original version, with the Irish text an official translation, and said the translation raised a separate and more complicated question.
The court concluded that the statutory wording was unambiguous and that the constitutional challenge therefore did not arise on the construction advanced. Hardiman J concurred with Clarke J’s conclusion. The ruling interpreted the forfeiture provision; it did not determine whether Montemuino committed the alleged fishing offence or what forfeiture, if any, would be ordered after trial.