The High Court ruled that the Sea Fisheries Protection Authority (SFPA) breached fair procedures when it assigned penalty points to the fishing licence of Crayden Fishing Company Limited without first giving the company an opportunity to make submissions.
In a judgment delivered on 26 January 2016, Ms Justice Iseult O’Malley said the licence holder was entitled to make its case before a determination panel decided whether serious infringements had occurred and what points should be assigned. She proposed granting a declaration that the manner in which the SFPA had purported to assign points was contrary to fair procedures.
The dispute followed an inspection of the company’s vessel, the Anders Nees, after it returned to port on 2 December 2014. An SFPA officer’s report described discrepancies in the catch records and fish found behind shuttering in the hold. The master was interviewed under caution. The company later received the inspection report, but was not invited to comment or make submissions before the determination panel met.
In January 2015, the SFPA notified the company that three alleged serious infringements attracted a total of 14 points, capped at 12 under the applicable rules. The company appealed, and an appeals officer arranged an oral hearing. It also obtained judicial review, arguing that the initial decision was made without notice of the accusations and evidence, an opportunity to be heard, or adequate reasons.
The SFPA argued that the panel’s decision was provisional and that the appeal formed part of a single process in which the company could be heard. The judge rejected that characterisation: the panel made a determination with a defined legal effect on the licence, even though the effect was suspended while an appeal could be brought or was pending. She found the panel had to assess the evidence and decide whether serious infringements had occurred; that task was not simply to accept findings made by inspecting officers.
The judgment noted that the panel’s decision included a charge not listed in the inspection report and assigned points without reference to the company’s economic circumstances. The judge said the licence holder should be notified that a panel would consider the allegations and points, be allowed to make representations on the relevant statutory criteria, and be told if the panel’s proposed charges differed from the inspection report. An oral hearing would not normally be required. The panel must also give concise reasons for its decision.
The case challenged the procedures used in this company’s case; it did not challenge the legal validity of the 2014 Regulations. The judgment records that a separate case had held the Regulations invalid, but no final order had been made there. The court proceeded without deciding that issue. The judgment’s final paragraph states the declaration the judge proposed to grant; the supplied text does not record a separate final order.