The High Court refused an application by Michael Faherty to stop his prosecution over alleged Blue Whiting fishing and to challenge the validity of the regulations under which he was charged.
Faherty, master of the Irish-registered fishing vessel Atlantean, sought prohibition of his trial and declarations that section 224B of the Fisheries (Consolidation) Act 1959 and the Blue Whiting (Fisheries Management and Conservation) Regulations 2006 were invalid under the Constitution. Mr Justice Hedigan delivered judgment on 3 June 2011.
The judgment recounts that the Atlantean returned to Killybegs on 4 March 2006 after fishing for Blue Whiting. A fishery officer boarded the vessel and detained Faherty on a charge of illegal fishing. The 2006 Regulations had come into force the previous day and prohibited Irish fishing boats from fishing for Blue Whiting in a specified area.
Faherty argued that the Minister had relied on the wrong European measure when making the regulations, and that section 224B did not authorise the Minister to choose a criminal sanction where European law allowed a choice of sanctions. He also contended that this choice belonged to the Oireachtas. The State argued that section 224B itself created the offence and that the regulations supplied its details; alternatively, it said the Act clearly authorised the Minister’s role and the measures were necessary to implement European obligations.
At the hearing, the judge refused Faherty’s application to extend the grounds of his judicial review to include his claimed lack of knowledge that Blue Whiting fishing had been closed. The judge said the issue depended on factual matters about how closure information was circulated and was for the trial court to assess. The judge also found the claimed lack of knowledge was already mentioned in Faherty’s affidavit and did not justify adding a new ground.
The court accepted that the judicial review application was not out of time, noting that no indictment had been served. On the substance, the judge concluded that the Oireachtas had imposed the criminal sanction through section 224B(3), while the regulations set out the subject matter of the offence. The judge added that, even if the regulations created the offence, the Act clearly gave the Minister power to do so, and the implementation choice fell within Ireland’s obligations under European law.
The court refused all relief sought. The judgment did not determine Faherty’s guilt or the outcome of the criminal prosecution.