High Court of Ireland Decisions

1. By Order of the High Court (Budd J.) dated the 10th day of September, 1997, the Applicant was granted leave to apply for various reliefs by way of Judicial Review in respect of a decision made by the South Western Regional Fisheries Board (hereinafter referred to as the Board) on the 10th day of June, 1997, whereby the Board declined to issue to the Applicant a certificate of suitability for appointment as a waterkeeper pursuant to the provisions of Section 294 of the Fisheries (Consolidation) Act, 1959 (hereinafter referred to as the 1959 Act) as amended by Section 17 of the Fisheries (Amendment) Act, 1991 (hereinafter referred to as the 1991 Act).

2. In particular, the Applicant was granted leave to seek:-

3. At the commencement of the hearing Counsel indicated that the parties had agreed that the proceedings herein would be confined, at least until further Order, to the Applicant's claim against the Board for the reliefs described at (a) and (b) above, and, by consent of the parties, I adjourned the Applicant's claim against the Second, Third and Fourth named Respondents pending the outcome of these proceedings.

4. The Applicant who is 43 years old and resides with his wife and two children in Tralee, County Kerry was first appointed a waterkeeper in 1977 pursuant to the provisions of the 1959 Act and he has been employed in that capacity since 1977. Although he has described himself in evidence as a "security contractor" he has clearly averred to the fact that since the date of his first appointment as a waterkeeper in 1977, he has relied upon that occupation as his sole source of income and the sole means of support for himself and for his family so that he relies upon this employment exclusively for his livelihood.

5. The Board is a statutory body which, inter alia, has responsibility for the management of fisheries in the Kerry region and for appointing waterkeepers for state fisheries but additionally, and in particular, it is the statutory body charged with the responsibility imposed by Section 17 of the 1991 Act for the issue to appropriate applicants of certificates of suitability for appointment as waterkeepers in respect of private fisheries who are desirous of making such appointments for the purpose of protecting their fisheries.

6. The Board comprises a number of persons who, inter alia, are elected thereto pursuant to the provisions of Section 14 of the 1991 Act and usually because they are reputable persons living within the South Western region of Ireland who are experienced in matters relating to the protection and preservation of fisheries.

7. Pursuant to the provisions of Section 294 of the 1959 Act (as amended) the appointment of a private waterkeeper must be confirmed by a Judge of the District Court and Section 2A of Section 294 of the 1959 Act (as inserted by Section 17 of the 1991 Act) expressly provides inter alia that:-

8. The 1991 Act came into force on the 31st October, 1991.

9. Accordingly, the powers and obligations of a waterkeeper cannot be lawfully vested in the Applicant unless and until the Board has first issued to him a document certifying that he is a suitable person to be appointed a waterkeeper and his authority to act in that capacity and to earn his livelihood from that activity is wholly dependant upon the issue of such a certificate by the Board.

10. The Applicant was on the 31st day of October, 1991 a lawfully appointed waterkeeper pursuant to various warrants issued by the Board pursuant to the 1959 Act and having regard to the provisions of sub-section (c) of Section 2A of Section 294 of the 1959 Act (as inserted by Section 17 of the 1991 Act) his appointment as a waterkeeper remained in force until its expiration on the 31st October, 1996 when he was engaged in the occupation of waterkeeper on behalf of some private fisheries including Messrs. Chopwell Limited, Mr. Paul Metz and Messrs. K.R.D. Fisheries Limited all of whom indicated a desire to re-appoint the Applicant as waterkeeper in respect of their fisheries.

11. By letter dated the 27th May, 1997 the Applicant wrote to Mr. Barry, the Manager of the Board, seeking Certificates of Suitability in respect of ".... Upper Caragh River, Owenmore and K.R.D. Fisheries...." indicating inter alia that ".... as these fisheries are private and are part of my business and means of earning a living, I anticipate that there will be no problems".

12. By letter dated the 13th June, 1997 Mr. Barry replied to the Applicant referring to his application and stating simply that "... the Board has declined to issue the requested letter".

13. By letter dated the 23rd June, 1997 the Applicant's Solicitors wrote to the Board requesting that the Board should specify the grounds or reasons why it was declining to issue the appropriate certificate and by letter which is (presumably incorrectly) dated 17th June, 1997, the Board's Solicitors replied indicating that ".... there is no obligation on the Board to issue reasons for its decision".

14. Uncontradicted evidence was adduced on behalf of the Board to the intent that the Applicant has been convicted of the following offences:-

15. All of the convictions referred to above were summary convictions which were dealt with in the District Court and prison sentences were imposed upon the Applicant in respect of some convictions including sentences of three months imprisonment, six months imprisonment and in one case twelve months imprisonment.

16. The Applicant however did not serve any terms of imprisonment because all of the sentences were ultimately suspended or reduced either in the District Court or on appeal from that Court.

17. Evidence was adduced on behalf of the Board to the intent that on the 19th day of January, 1996 the Judge of the District Court, in the course of sentencing the Applicant in respect of the offences committed on the 25th May, 1995, described the Applicant as "..... a dangerous man and a criminal - he has a bad record. He is a most unsuitable person to be engaged as a Waterkeeper".

18. The minutes of a meeting of the Board held on Tuesday, the 8th April, 1997 recorded as follows:-

19. The minutes of a meeting of the Board on Tuesday, the 10th June, 1997 recorded inter alia the following:-

20. Evidence adduced by the Chairman of the Board, Mr. Noel Hales, indicated that at the meeting of the Board on the 10th day of June, 1997 the Applicant's criminal record, which involved the use of violence and the unlawful possession of firearms together with the observations of the District Judge as outlined above, influenced the members of the Board in arriving at its unanimous decision.

21. On the 1st October, 1996 appeals by the Applicant in respect of the severity of the sentences of imprisonment imposed upon him in respect of the offences committed on the 25th May, 1995 were heard in the Circuit Court in Tralee and the Applicant was placed under the supervision of the Probation Welfare Service whilst his appeal was adjourned to the 4th March, 1997 and thereafter to the 18th November, 1997 when the sentences of imprisonment appear to have been suspended. It follows from the foregoing that on the 10th day of June, 1997 when the Board was considering the Applicant's application for a Certificate of Suitability, the sentences which had been imposed upon him were the subject of an appeal against severity.

22. The Applicant seeks an Order of Certiorari quashing the Board's decision on the grounds that the Board failed to follow fair procedures and to act in accordance with natural justice in that it:-

23. The Board contends that the issue of a Certificate of Suitability for appointment as a waterkeeper is a matter peculiarly within the discretion of the Board in order to ensure that only competent persons of integrity and good character are appointed to exercise the powers and functions conferred upon them by the 1991 Act.

24. The Board further claims that when considering an application for a certificate of suitability for appointment as a waterkeeper, the Board is acting in an administrative and not a quasi-judicial capacity and that in such circumstances the rules of natural and constitutional justice and the requirement to follow fair procedures do not mandate that reasons be given as to why particular applications for certificates are declined by the Board.

25. Alternatively, the Board contends that it acted in a responsible and appropriate manner in refusing to issue a certificate to the Applicant having regard to his criminal record, the observations of the Judge of the District Court and the Board's obligations, both statutory and otherwise.

26. Section 2A(a) of Section 294 of the 1959 Act provides that an appointment as a waterkeeper "... shall not be confirmed unless the person concerned has been issued by the appropriate regional board with a Certificate of Suitability for appointment".

27. Since there is no other reference to such a certificate within either the 1959 Act or any subsequent legislation, it follows that the above sub-section has the effect of empowering the regional boards defined within the 1959 Act (as amended) to issue such certificates and that the power of the boards is discretionary in nature.

28. He went on to cite with approval the following statement of law made by O'Higgins C.J. in the State (Lynch) -v- Cooney , (1982) I.R. 337 in relation to Section 31 of the Broadcasting Authority Act, 1960:-

29. In the instant case I am satisfied that since the issue by the Board to the Applicant of a Certificate of Suitability for appointment as a waterkeeper fundamentally affects the Applicant's capacity to earn a livelihood for himself and for his family, the exercise by the Board of its statutory power to issue such a certificate was expressly subject to a guarantee in favour of the Applicant of the application of fair procedures in respect of the consideration of his case.

30. In the instant case reasons have been advanced on behalf of the Board justifying its refusal to issue a Certificate of Suitability to the Applicant on the grounds, inter alia, of the very substantial number of criminal offences of which he has been convicted and the remarks of the Judge of the District Court on a particular occasion which related to the Applicant's character and suitability for the occupation of waterkeeper.

31. These reasons however have been given ex post facto insofar as they were made known to the Applicant for the first time within the course of these proceedings and substantially after the Board had declined to issue the certificate for which the Applicant had applied.

32. Having regard to the reasons which have now been given by the Board in support of their refusal to issue a certificate to the Applicant, their refusal prima facie would appear to have been based upon views which were bona fide held by the Board, factually sustainable and not unreasonable.

33. It is clear however from the decision of Barr J. in Tiernan -v- North Western Regional Fisheries Board , (1997) 2 IR 104 that an opinion formed or a view reached with a view to exercising a statutory power must be formed or reached after the application of fair procedures to the consideration of the exercise of the power.

34. Whilst the procedure required by the 1959 Act for the issue of salmon dealers and exporters licences is not identical to the procedure required by the same Act for the appointment of a waterkeeper, I take the view that the principles as to fair procedures which have been set out by Barr J. in that case are helpful to the consideration of the facts of the instant case.

35. He based that conclusion upon his finding that:-

36. Manifestly the decision of the Board in the instant case is central to the confirmation of the Applicant's appointment as a waterkeeper and accordingly I am satisfied that in considering the Applicant's request for a Certificate of Fitness to act as a waterkeeper the Board was engaging not just in an administrative function but also in a quasi-judicial process and that accordingly the principles of fair procedures and the duties of the Board which were identified by Barr J. in the Tiernan case apply to the consideration by the Board of the Applicant's request for a Certificate of Fitness to act as a waterkeeper.

37. On the evidence which has been adduced in this case it is abundantly clear that information came into possession of the Board which was adverse to the Applicant and that the Board's decision was significantly influenced by that information. The Applicant was not invited to respond to this information and was not given the opportunity to make his case in favour of his application having regard to the information which had come into the possession of the Board and whilst submissions made by or on behalf of the Applicant made in the knowledge of and in response to the information which had come into the possession of the Board might well have had no effect upon the Board's ultimate decision, I am satisfied that the principles of constitutional justice which have been identified above required that the Applicant be given an opportunity to make such submissions to the Board before the final decision on his application was made.

38. It could perhaps be argued that, notwithstanding the foregoing, the evidence of the Applicant's unsuitability for appointment as a waterkeeper which was before the Board was so overwhelming as to render the exercise of this Court's discretion inappropriate in this case but I do not believe that it is the function of this Court to reach conclusions as to how the Board would necessarily react to submissions made to it on behalf of individual applicants for relief of one kind or another and it is not to be overlooked that in the course of the decision-making process in this case, one member of the Board (Mr. Tansley) was clearly uneasy about the decision and, having sought additional information in relation to the application, heard only the adverse information and no submissions on behalf of the Applicant.

39. In the light of the foregoing I am forced to the conclusion that since the Board made its decision largely based upon information supplied to it which was adverse to the Applicant and since the Applicant was given no opportunity to respond to that information in support of his application, the Board inadvertently failed in its obligation to apply fair procedures to its consideration of the Applicant's request.

40. Accordingly, the Board's decision is unlawful and must be quashed and the Applicant is entitled to an Order requiring the Board to reconsider his application in accordance with the procedure set out herein.