High Court of Ireland Decisions

Judgment Title: Montemuino -v- Minister for Communications & Ors

Neutral Citation: [2008] IEHC 157


High Court Record Number: 2006 936 JR

Date of Delivery: 30 May 2008

Court: High Court

“I say that my instructions from the applicant are that he accepts the facts as alleged against him in the book of evidence, and would in the normal course of events intend to plead guilty to the charge against him.”

“1. Member States shall ensure that the appropriate measures be taken, including administrative action or criminal proceedings in conformity with their national law, against the natural or legal persons responsible where common fisheries Policy have not been respected, in particular following a monitoring or inspection carried out pursuant to this Regulation.
2. The proceedings initiated pursuant to paragraph 1 shall be capable, in accordance with the relevant provisions of national law, of effectively depriving those responsible of the economic benefit of the infringements or of producing results proportionate to the seriousness of such infringements, effectively discouraging further offences of the same kind.
3. The sanctions arising from the proceedings mentioned in paragraph 2 may include depending on the gravity of the offence:

- Fines,
- Seizures of prohibited fishing gear and catches,
- Sequestration of the vessel,
- Temporary immobilisation of the vessel,
- Suspension of the licence,
- Withdrawal of the licence.”

“(1) Without prejudice to the generality to s. 3 (1) of the Act of 1972, the Minister may by regulations make provision to give effect within the exclusive fishery limits of the State to any provision either of the Treaties or any Act adopted by an institution of the European Communities which authorises any or all of the Member States of European Communities to restrict, or otherwise regulate in a manner specified in the provision, fishing in waters, or in part of waters, under its or their sovereignty or jurisdiction.
(2) Regulations under this section may include such incidental, supplementary and consequential provisions as appear to the Minister to be necessary for the purposes of the regulations (including provisions repealing, amending or applying, with or without modification, other law, exclusive of this Act).
(3) A person who fishes or attempts to fish in contravention of regulations under this section shall be guilty of an offence and shall be liable on conviction on indictment to a fine not exceeding ₤100,000, and as a statutory consequence of the conviction, to forfeiture of all or any of the following found on the boat to which the offence relates (a) any fish, (b) any fishing gear.ö

“This is a specific power given to the second named respondent (the Minister), expressly stated to be without prejudice to the generality of s. 3(1) of the Act, of 1972, to make regulations and to give effect within the exclusive fishery limits of the State to any provision of either the Treaties or any Act adopted by an institution of the European Communities to restrict or regulate fishing in the waters of the community. Section 224 B(2) mirrors s. 3(2) of the Act, 1972. Provision is made in subs. 3 expressly for an indictable crime. Thus, here the legislature expressly created machinery and gave power to the second named respondent (the Minister) to implement community law by regulation and to create an indictable offence.”

(1) A declaration that the Sea Fisheries (Control of Catches) Regulations 2003 (S.I. No. 345 of 2003) is invalid having regard to the provisions of the Constitution of Ireland;
(2) If necessary, a declaration that s. 224 B(3) of the Fisheries (Consolidation) Act, 1959, as inserted by s. 5 of the Fisheries (Amendment) Act, 1983 is invalid having regard to the provisions of the Constitution of Ireland;
(3) If necessary, a declaration that the Sea Fisheries (Control of Catches) Regulations 2003 (S.I. No. 343 of 2003) fails to respect the rights of the applicant in E.C. law and is null and void;
(4) If necessary, a declaration that s. 224 B(3) of the Fisheries (Consolidation) Act, 1959, as inserted by s. 5 of the Fisheries (Amendment) Act, 1983 fails to respect the rights of the applicant in E.C. law and is null and void.

“I say that in the applicant’s situation, if he does so plead guilty and is convicted, this has the result, that notwithstanding the fact that the offence alleged against him relates to only €600.00 out of a total catch of €31,057.00, the entirety of the €31,057.00 will be forfeited. Whilst the trial Judge will have a discretion as to the amount of the fine to be imposed, and can take into account the percentage of the fish involved when determining the appropriate fine, the trail Judge has no discretion as to the forfeiture. Such a forfeiture is a statutory consequence of conviction, and such an order is made by the trial Judge at the sentence hearing. ….I say that it is clear that the said forfeiture is wholly and exceptionally disproportionate to the offence alleged against the applicant.”

“In the opinion of this Court, so far as punishment is concerned, the punishment which must be examined for the purpose of gauging the seriousness of an offence is what may be referred to as"primary punishment." That is the type of punishment which is regarded as punishment in the ordinary sense and, where crime is concerned, is either the loss of liberty or the intentional penal deprivation of property whether by means of fine or other direct method of deprivation….
In so far as it (disqualification) may be classed as a punishment at all it is not a primary or direct punishment but rather an order which may, according to the circumstances of the particular individual concerned, assume, though remotely, a punitive character.”

“In my view the reasoning of the Supreme Court in the Conroy Case [1965] I.R. 411 is similarly applicable here.
In fact it seems to me in the present case that there are even more compelling grounds for distancing the primary punishment which may be imposed by a District Justice from the unpleasant consequences which would undoubtedly flow from the exercise of the discretion conferred upon him to forfeit the equipment of the accused. It was clearly recognised in the Conroy Case [1965] I.R. 411 that there may be good executive and administrative reasons for depriving a citizen of the right to use equipment or exercise functions which are themselves valid and proper because the citizen has displayed an incapacity or unwillingness to use the equipment or discharge the functions in a proper manner. How much more should there be an administrative or executive power to deprive a citizen of equipment, in the present case gaming instruments, which are inherently designed for the commission of a criminal offence?”

“Nor can I see that there is any analogy between disqualification from holding a driving licence or from holding office and the forfeiture of fish and gear on conviction for illegal fishing. The only issue appears to me to be whether the forfeiture is a primary or direct punishment or a more remote consequence of the conviction, and I would refer to the observations of Walsh J. at part 442 of Conroy’s case, mentioned above. The forfeiture required under this section appears to me to be and to be intended to be a penalty and it also appears to me to be a direct consequence of a conviction under the section.”

“The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:-
(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;

(c) be such that their effects on rights are proportional to the objective.”

“In effect a form of proportionality test must be applied to the proposed section.
(a) Is it rationally designed to meet the objective of the legislation?
(b) Does it intrude into constitutional rights as little as reasonably possible?
(c.) Is there a proportionality between the Section and the right to trial in due course of law and the objective of the legislation?....or to put it a slightly different way, s. 63, sub-s. 3, when read in the context of the Bill is a failure to protect the constitutional rights of the citizen and not warranted by the objectives which it sought to secure.”

“In order to establish whether a provision of Community law is consonant with the principle of proportionality, it is necessary to establish, in the first place, whether the means it employs to achieve its aim correspond to the importance of the aim and, in the second place, whether they are necessary for its achievement. Any measure constituting a charge, whether or not it is in itself tolerable, infringes the proportionality between the charge and the result to achieve, when that objective cannot be attained by the method employed or when, in order to attain it, there are other methods which may be more conveniently applied. In general, where there is a choice between several appropriate measures, recourse must be had to the least restrictive and the disadvantage caused must not be disproportionate to the aims pursued.”

“Penalties of whatever nature imposed for breach of national provisions which restrict the fundamental freedoms are subject to a strict test of proportionality. The Court stated in Casati (Case 203/80 [1981] ECR 2595, para 27):-
“In principle, criminal legislation and the rules of criminal procedure are matters for which the member States are still responsible. However, it is clear from a consistent line of cases decided by the Court, that Community law also sets certain limits in that area as regards the control measures which it permits the Member States to maintain in connection with the free movement of goods and persons. The administrative measures or penalties must not go beyond what is strictly necessary, the control procedures must not be conceived in such a way as to restrict the freedom required by the Treaty and they must not be accompanied by a penalty which is so disproportionate to the gravity of the infringement that it becomes an obstacle to the exercise of that freedom.”

“There is nothing constitutionally unacceptable, on the present case law, in the Oireachtas deciding to prescribe general rules which reflect its views, as democratically elected representatives of the public, as to the degree of seriousness to be attributed to different types of offences. The legislature gives indications as to the degree of seriousness with which it views various offences by specifying in many cases the maximum, minimum or as in the present case, the mandatory sentence to be imposed following conviction.
If one is to admit of the argument that mandatory sentencing in relation to any criminal offence is unconstitutional, one would have to give serious consideration as to the extent to which the legislature would be in a position to provide either maximum or minimum sentences in any legislation dealing with criminal offences without risking constitutional infringement. Further, the same argument would have to raise questions as to the role of the executive, post sentence, where, as outlined above, the executive effectively has power to alter the sentence imposed by the trial judge through a range of measures including commutation, remission or early release of prisoners because of good behaviour or on foot of a Temporary Release Order. Once again, it could be alleged that for the executive to invoke any of these measures must be unconstitutional because de facto the prison sentence initially imposed is likely to be varied somewhat by executive intervention of one type or another.”

“The court accepts the defendants argument in the instant case that the Oireachtas, in a vast array of legislative provisions, intrudes upon the discretion of the court. In this particular case the intrusion is the provision of the mandatory sentence. In other cases, the Oireachtas intrudes by requiring mandatory consequential orders to be imposed following upon conviction. One such example is where a holder of an intoxicating liquor licence is convicted of certain offences contrary to Part IV of the Intoxicating Liquor Act, 1988. In such a case the District Court must, in addition to any penalty imposed, make a temporary closure order. In other cases the legislature provides that particular statutory consequences will automatically attach to a judicial decision without the requirement of an order of the court, one such example being the twelve month disqualification from holding a driving licence where a driver is convicted of drink driving offences under s. 26 of the Road Traffic Act, 1961.
If the plaintiffs are correct that any mandatory provision in legislation transgresses upon the constitutional role of the judiciary, it is difficult to see how the legislature can legitimately, as it does in so many cases, direct the court in legislation as to how certain evidence must be treated by the court at trial.”

“The court has already held in Deaton (Deaton v The Attorney General and the Revenue Commissioners [1963] I.R. 170) that mandatory sentences do not offend the Constitution and it is difficult to see therefore how the doctrine of proportionality discussed in the above cases avail the plaintiffs in any case where a mandatory sentence is prescribed. This Court considers that the type of proportionality as discussed by Flood J., Denham J. and Hardiman J. was the need for proportionality as part of sentencing policy where a trial judge is vested with a discretion as to the sentence that may be imposed. That concept of proportionality seems somewhat different to the concept of constitutional proportionality which truly arises for consideration in this case. Constitutional proportionality in the context of the mandatory life sentences imposed upon the plaintiffs herein necessarily involves the court in determining whether the offence of murder, irrespective of its gravity in any particular case, can justify the legislature fixing a punitive mandatory life sentence to apply in all cases. In other words, can the deprivation of liberty provided for in s. 2 of the Criminal Justice Act, 1990 be justified in every single case by virtue of the objectives which the legislature seeks to maintain by the enactment of such provision?”

“There is no question, therefore, of either the legislature or the executive fixing the punishment. Only the court exercising its judicial power does that. This court cannot accept that because there is a legislative prescription in relation to the fine option there is a breach of the principle of separation of powers. It is quite clear from the judgment of Ó Dálaigh C.J. in Deaton v. The Attorney General and the Revenue Commissioners [1963] I.R. 170 that the Oireachtas does have powers to lay down general parameters within which a sentence is to be imposed. There is no necessity in this judgment and indeed it would be wholly undesirable to consider what the limits might be (if any) on the power of the Oireachtas to provide for either fixed sentences or mandatory sentences. One could postulate extreme situations where the sentencing powers of judges were removed altogether and every offence had a mandatory sentence. The constitutionality of such a law would obviously be questionable. But it has always been accepted and indeed was accepted, in Deaton v. The Attorney General and the Revenue Commissioners that, within reason at least, the Oireachtas has power to lay down those parameters.”
Murray C. J. went on (at page 518) to state:-
“As has already been pointed out, there are reasonable options open to the trial judge in these cases and in so far as there are limitations (a) they are not unreasonable and (b) they are the kind of limitations which are normal in revenue offences. The principle that sentences must be proportionate to the personal circumstances of the appellant is perfectly capable of being applied in these cases. It may well be, as Professor O'Malley suggests in his Leading Cases of the Twentieth Century, that the courts might be entitled to strike down a mandatory sentence if they were convinced that its purpose or effect was to leave offenders liable to a disproportionately heavy punishment. In the view of the court, that issue does not arise and should not be considered in this case.”