The Supreme Court has held that the procedure under the European (Common Fisheries Policy) (Point System) Regulations 2014 for proposing penalty points against a fishing licence fell short of fair procedures. It upheld the High Court’s conclusion on narrower grounds, but set aside the order quashing the panel’s decision and made no replacement order because the regulations had been declared invalid in a companion case.
The appeal concerned Crayden Fishing Company Limited, owner of the vessel Anders Neel and holder of its sea fishing licence. Sea fishery protection officers boarded the vessel at Ros a Mhil, County Galway, on 2 December 2014. Their report alleged that the vessel’s master had under-recorded whiting, concealed unboxed fish in the hold and exceeded the 2014 whiting quota. Those allegations, if established, could amount to breaches of fisheries rules and could lead to criminal prosecution of the master.
A determination panel later classified the alleged infringement as serious and proposed assigning 12 points to the licence. Crayden was told it could appeal within 21 days. It lodged an appeal, but began court proceedings before the appeal hearing and obtained a stay of that hearing. It argued that the panel process was unfair because it had not been allowed to make representations or challenge the officers’ evidence, and had not received reasons.
The State authorities argued that the panel’s step was preliminary and that the process as a whole was fair because points would not be applied if a licence holder successfully appealed. The Supreme Court examined the process under the 2014 regulations, including the proposed points’ effect unless the licence holder initiated an appeal and displaced that outcome. It concluded that the regulations created, in substance, a single decision-making process before an independent body, with the licence holder bearing the burden of disproof. The minimum procedures provided by the regulations fell short of fair procedures.
The Court also addressed a separate High Court observation that an operator’s economic circumstances had to be considered. It said those circumstances were not a legal criterion for determining a serious infringement under the points system established by the 2014 regulations or their successor.
The 2014 regulations had been revoked by regulations made in 2016, and the Court considered the case technically moot as between Crayden and the State, while deciding that its wider public importance justified hearing the appeal. The Court set aside the High Court’s certiorari order quashing the determination panel’s 16 January 2015 decision to propose 12 points. Because the regulations had been declared invalid in the companion O’Sullivan case, it said no substitute order was necessary. It otherwise dismissed the appeal and invited submissions on the orders to be made.