The Court of Appeal has dismissed an appeal by Christopher McCarthy, leaving in place the High Court’s refusal to block a criminal prosecution over alleged turf cutting at Moanveanlagh Bog in County Kerry.
The appeal concerned whether the Minister could create an indictable offence by regulation to implement Ireland’s obligations under the EU Habitats Directive. McCarthy argued that criminal sanctions were not specified in that directive and required primary legislation by the Oireachtas. The court rejected that argument, holding that the Minister acted within his powers under the European Communities Act 2007.
McCarthy, a machine operator from Killbaha, Moyvane, is charged under the 2011 European Communities (Birds and Natural Habitats) Regulations with illegal turf cutting on 20 May 2012. The judgment says part of the prosecution case is that he was seen operating turf-cutting machinery at the bog. He faces trial before the Circuit Criminal Court in Tralee. That trial had been adjourned pending these proceedings.
The court considered the State’s obligations to protect designated sites under the Habitats Directive, alongside evidence filed for the respondents about damage to the bog and unsuccessful efforts to stop cutting through persuasion and compensation. The judgment describes Moanveanlagh Bog as a Special Area of Conservation and records affidavit evidence that its conservation status was assessed as “unfavourable bad – declining” in 2013. That evidence was not challenged, according to the judgment.
The court concluded that the indictable offence was a necessary and proportionate measure to implement the directive and did not fall into either of the categories in which the Minister’s regulation-making power could be ultra vires. It dismissed the appeal. The decision addresses the validity of the offence; it does not determine whether McCarthy committed it. The judgment records no finding on his guilt and no order ending the pending prosecution.