The Court of Appeal has quashed the sentence imposed on fishing vessel master Klass Dirk Meijvogel after finding the sentencing judge had been wrongly told that he had no discretion over forfeiture of the vessel’s catch and fishing gear. The court adjourned the matter for further evidence and resentencing, where the proportionality of any forfeiture must be assessed.
Meijvogel was convicted by a jury at Cork Circuit Criminal Court in June 2015 of carrying prohibited automatic fish-grading equipment aboard the UK-registered Wiron 5 within Ireland’s exclusive fishery limits. His conviction appeal was dismissed in 2018. At sentencing in July 2015, he received a €500 fine and an order forfeiting catch valued at €344,960 and fishing gear valued at €55,000.
The Court of Appeal said both prosecution and defence had incorrectly advised the sentencing judge that forfeiture of all catch and gear followed automatically from conviction. The judge therefore did not assess whether forfeiture was proportionate to the offence and its seriousness, or whether it would affect Meijvogel’s right to work and earn a livelihood. The appeal court said the judge was not personally at fault for relying on the parties’ shared mistake.
The case had been referred twice to the Court of Justice of the European Union. Its rulings left the national court to assess whether forfeiture was proportionate and, if necessary, whether its extent should be adjusted. The Irish provision then in force covered all catch and fishing gear found aboard, including gear that was not prohibited or non-compliant. The Court of Appeal said that breadth raised a proportionality concern, but it did not decide that the provision was incompatible with EU law.
The appeal court concluded that there was a real possibility the sentence was disproportionate and that the legal error could have affected the outcome. It allowed the appeal and quashed the sentence, but did not quash the conviction or make an order disapplying the forfeiture provision. It said it had to resentence the appellant itself because the relevant legislation did not provide for remitting the matter to the Circuit Court.
The resentencing is adjourned pending further evidence. The parties may provide material relevant to proportionality, including the value of prohibited gear, the appellant’s employment and financial circumstances, and the likely economic benefit of the infringement. The Court of Appeal also left open whether a separate EU provision concerning failure to land quota species applies. No replacement sentence or final forfeiture order was made in this judgment.