The High Court has refused two men’s application to stop prosecutions over alleged machine turf-cutting at Moanveanlagh Bog in Co Kerry, rejecting their challenge to the regulations under which they were charged.
John O’Connor and Christopher McCarthy were each charged with using machinery to extract turf at the protected site on 20 May 2012, without lawful authority and in circumstances alleged to be likely to significantly affect the site’s integrity. They were sent forward to the Circuit Court for trial on indictment in July 2013. The judgment notes an inconsistency in the dates given for when they were charged, but says nothing turned on it.
The men sought prohibition and declaratory relief through judicial review. They argued that the Minister had exceeded the powers granted by the European Communities Act 1972 by creating an indictable offence through regulations, and that such an offence was not necessary to implement the Habitats Directive. They also challenged whether the penalties had been properly considered for effectiveness, proportionality and deterrence.
The respondents argued that criminal sanctions were necessary to protect the bog and give effect to Ireland’s obligations under EU law. Evidence before the court included an account from a National Parks and Wildlife Service official that previous efforts to stop turf-cutting, including restrictions and compensation measures, had not fully succeeded. A Department wildlife inspector described damage to raised bogs from turf removal and associated drainage. Moanveanlagh was assessed in 2013 as “Unfavourable Bad-Declining”, the lowest ranking, with 4.6 hectares of active bog remaining.
Justice Iseult O’Malley said the relevant directive required the State to take appropriate steps to prevent deterioration at protected sites. Given the evidence that earlier measures had not stopped cutting, she concluded that criminal sanctions could be necessary to implement the directive, even though it did not expressly require criminal offences.
The judge also rejected the challenge to the penalties. She said the applicants bore the burden of showing that the regulations were ineffective, disproportionate or not dissuasive, and considered the respondents’ evidence sufficient to establish that the penalties were not disproportionate in light of the potential environmental damage and commercial nature of much of the cutting.
The court refused the relief sought. It did not determine whether either man committed the alleged offence; the prosecutions were pending.