The Supreme Court dismissed the State’s appeal and affirmed a High Court order prohibiting the prosecution of fishing-vessel master Vincent Browne under the Sea Fisheries (Drift Nets) Order 1998. The court held that the Minister had no authority under the provision used to make that order, which sought to implement European Community rules and exposed a person to prosecution for an indictable offence.
The case followed the boarding of the Irish vessel MFV Antonia on 24 June 2000, about 400 miles southwest of Dingle and 200 miles beyond Ireland’s exclusive fishery limits. An Irish naval boarding party inspected the vessel’s nets. One was measured at 2.545 kilometres, slightly over the 2.5-kilometre limit then applicable. A second net, described by Browne as a bottom-set gill net, measured 4.554 kilometres. Browne said it was not a drift net and was not being used for fishing at the time. The State disputed that position. The Supreme Court said the net’s classification was for the criminal trial, if it proceeded.
The vessel and gear were detained for 48 hours. The catch was sold, with £16,900 in proceeds retained pending the prosecution. Browne was returned for trial on two charges: keeping a prohibited drift net aboard and using prohibited drift nets for fishing. He challenged the proceedings, arguing, among other grounds, that the 1998 Order was beyond the Minister’s powers.
The High Court granted prohibition against the prosecution, and the State appealed. The Supreme Court concluded that the order was intended to implement principles and policies in an EC regulation, rather than those set out in parent legislation enacted by the Oireachtas. The Minister could make regulations to give effect to the EC measure under section 3 of the European Communities Act 1972, but regulations under that section could not create an indictable offence. The court found no authority in section 223A of the Fisheries (Consolidation) Act 1959 for using a different route to create such an offence while implementing the EC measure.
That finding was sufficient to dismiss the appeal. The court did not decide the separate argument that the 1998 Order failed expressly to provide for offences committed beyond Ireland’s exclusive fishery limits. It also did not rule on whether the Council regulation itself was invalid, or on the other grounds that had not been argued on appeal.