[2013] IESC 40 THE SUPREME COURT
JUDICIAL REVIEW 365/08
Denham C.J
Hardiman J.,
Fennelly J.,
Clarke J.,
MacMenamin J.
JUAN M MONTEMUINO Applicant/Appellant and
THE MINISTER FOR COMMUNICATIONS MARINE AND NATURAL RESOURCES, IRELAND AND THE ATTORNEY GENERAL Respondents
JUDGMENT of Mr. Justice Hardiman delivered the 17th day of October, 2013.
1. This is the applicant’s appeal from the order of the High Court of the 18th June 2008, grounded upon the judgment of that Court (the late Mr. Justice Feeney) of the 30th May of that year.
2. The applicant is a citizen of Spain and is a fisherman by occupation. In December 2005 he was the Master of an Irish fishing vessel, the Ocean Enterprise. This vessel was registered in the port of Tralee. It was owned by Patrick Brown and was leased from him by Brendan Rogers.
3. The Ocean Enterprise was boarded by Fishery officers on the 8th December 2005. They formed the view that there had been a breach of the Fisheries (Consolidation) Act 1959, as amended. They obtained a court order for the detention of the vessel for forty-eight hours. After that period had expired, they obtained another order for the further detention of the vessel, pursuant to s. 234(1) of the Fisheries Acts. In accordance with normal procedures, a bank draft in the amount of €88,000 was produced by Brendan Rogers on the 10th December 2005. This was by way of security for any anticipated fine and expenses and also covered the estimated value of the entire catch. The vessel was then released.
4. On the same day, the applicant as Master of the vessel was charged with fishing within the State’s exclusive fishery limits in contravention of Article 6 of the Council Regulation 2847/93 as amended, and Article 1(a) of Commission Regulation 2807/83 as amended, by failing to fill in the log book of the operation of the said sea fishing vessel (in that he failed to record the true quantity of Fork Beard caught and retained on board) in contravention of Regulation 4 of the Sea Fisheries (Control of Catches) Regulations 2003 (SI 345 of 2003), contrary to s.224B of the Fisheries (Consolidation) Act 1959, as inserted by s.5 of the Fisheries (Amendment) Act 1983 and s.232 of the Fisheries (Consolidation) Act 1959.
5. Fork Beard is a species of fish. In this particular case it is to be noted that the agreed value of the entire catch on the boat in question when it was boarded by the Fishery officers was over €30,000. Of this the value of the Fork Beard was only €600. It was in relation to the Fork Beard alone that an allegation of failure to record has been made.
6. Neither the Irish nor the European Fisheries legislation is aimed at clarity or transparency and at times seem deliberately to court complexity and obscurity. But the essence of the allegation against Mr. Montemuino is this: that he failed to record the small quantity of Fork Beard caught by the vessel of which he was Master, contrary to European Regulations which establish a control system, and lay down detailed rules for recording information on Member States’ catches of fish. Therefore, he is alleged to be in breach of the Irish Fisheries Regulation, set out in the Statutory Instrument mentioned above. On this basis it is alleged that he is guilty of an offence under s.224B(3) of the Irish Act of 1959, which creates an offence of fishing in breach of the Regulations.
7. This Section creates an indictable offence not also triable summarily. Accordingly, on the 3rd May 2006 Mr. Montemuino was sent forward for trial from the District Court to Tralee Circuit Criminal Court.
8. Subsequently the applicant commenced the present proceedings and his trial has been adjourned from time to time pending the outcome of these proceedings.
9. The species of fish to which the alleged offence relates is the Greater Fork Beard. This is a “non-quota species” but under the Commission Regulations quoted above it is alleged that there was an obligation to record any quantity of the species on board the vessel in excess of fifty kilograms live weight.
10. All the foregoing facts are uncontroverted.
The Judicial Review Proceedings.
11. Mr. Montemuino challenged the constitutionality of s.244B(3) of the Act of 1959, which is the penalty provision of the Section.
12. This provision is as follows:
“ 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.”
13. The argument in the High Court proceeded, on both sides, on the assumption that this Section provided for a mandatory forfeiture of all fish and all fishing gear which was on a fishing vessel involved in an offence.
14. In the applicant’s statement of grounds seeking judicial review, dated 27th July 2006, he claimed amongst other things:
“The offence is one which is introduced into Irish law as a result of European Community Law and its common fisheries policy… there is no requirement in Community Law for mandatory forfeiture of the total fish and fishing gear found on a vessel”.
“[The Irish Statutory provision requires forfeiture of the entire gear and catch and] such a forfeiture is a mandatory statutory consequence of a conviction, and such an Order is made by the trial judge. Such an Order is a penalty and one of which account is taken by the trial judge when the determining the sentence”.
“The said forfeiture is wholly and exceptionally disproportionate to the offence alleged against the applicant. No matter what the trial judge decides to do insofar as a fine is concerned, even if the fine were one euro, the effect of the said forfeiture would be to impose a penalty which is wholly disproportionate to the offence”.
15. Although the case proceeded in the High Court, and the appeal opened in this Court, on the basis that the Section provided for the mandatory forfeiture of all the fishing gear and all the fish that were on a fishing vessel at the time of the detection of an offence, the Court itself raised the question of whether, on its true construction, the Section did indeed require a forfeiture of that kind or whether, on the other hand, the Section permitted the trial judge in the Circuit Criminal Court to impose a forfeiture of all or, alternatively, of whatever portion, number or amount of the catch and gear seemed appropriate to him.
16. The respect in which the relevant Section was said to be unconstitutional was that it imposed a mandatory forfeiture of the entire amount of the catch and gear. If, on the true construction of the Section, there was no such mandatory forfeiture then the claim that the Section was unconstitutional would simply not arise and would naturally be dismissed. On the alternative construction of the Section, whereby the forfeiture was discretionary only, the constitutional argument would simply “fall away”. When the question of the true construction of the Section was addressed on behalf of the applicant he invoked what is called the double construction rule whereby the Court should adopt any available construction of the Statute which avoids a finding of unconstitutionality.
Section 224B(3).
17. All legislation is expressed in words and, in principle, the meaning of legislation is that expressed in the ordinary and natural meaning of the words used. In Ireland statutes are passed either in the national and first official language, Irish, or in English which is “recognised as a second official language”. (See Article 8 of the Constitution). By reason of Article 34 an official translation of a statute passed in either official language must be prepared in the other official language.
18. For ease of reference, I now set out s.224B(3) of the Fisheries (Consolidation) Act 1959, as inserted by s.5 of the Fisheries (Amendment) Act 1983, first in English, and then in Irish. In each version, phrases which seem to me to be of particular importance are underlined.
Penal Statute.
19. It seems very well established that particular rules apply to the construction of penal enactments. I agree with what is said in Dodd Statutory Interpretation in Ireland (Dublin) 2002, at para. 11.54. There, the learned author has this to say:
“It is presumed that an enactment creating a penal, or taxation, liability or other detriment should be construed strictly so as to prevent the imposition of penal liability unfairly for the use of oblique or slack language (CW Shipping v. Limerick Harbour Commissioners [1989] IRLM 416). It is said that nobody should suffer a detriment by the application of a doubtful law and that a person should not be found guilty of a statutory offence where the words of the statute have not plainly indicated that the conduct in question will amount to an offence. The principle may be applied so as to require the precise fulfilment of statutory conditions precedent to the infliction of punishment and requires strict observance of technical provisions concerning criminal procedure and jurisdiction. The greater the penalisation, the greater weight to be attached to the principle.”
20. In DPP (Broderick) v. Flannigan [1979] IR 265 Henchy J. said:
“It is in my view a cardinal principle in the judicial interpretation of statutes that the range of criminal liability should not be held to have been statutorily extended except by clear direct and unambiguous words. If the law makers wish to trench on personal liberty by extending the range of the criminal law, they may do so, within constitutional limitations; but an intention to do so should not be imputed to them where the statute has not used clear words to that effect. No man should be found guilty of a statutory offence when the words of the statute have not plainly indicated that the conduct in question will amount to an offence. The requirement of guilty knowledge for the commission of an offence presupposes as much.”
21. I would add only that the same requirement for “clear direct and unambiguous words” extends to a penalty section as well as to a section which criminalises certain conduct.
22. In Mullins v. Harnett [1998] 2IRLM O’Higgins J. approved the following quotation from the well known text book, Maxwell on Statutes in the following terms:
“According to Maxwell 12th Edition p.239/40, ‘the strict construction of a penal statute seems to manifest itself in four ways: in the requirement of express language for the creation of an offence; in interpreting strictly the words setting out elements of an offence; in requiring the fulfilment of the letter of the statutory conditions precedent to the infliction of punishment; and in insisting on a strict observance of technical provisions concerning criminal procedure and jurisdiction’. It would appear that the principle applies not only to criminal offences but to any form of detriment. At p. 572 of Bennion, the nature of the principle is stated thus:
‘Whenever it can be argued that an enactment has a meaning requiring the infliction of a detriment of any kind, the principle against doubtful penalisation comes into play. If the detriment is minor, the principle will carry little weight. If the detriment is severe, the principle will be correspondingly powerful… however it operates, the principle requires that person should not be subjected by law to any sort of detriment unless this is imposed by clear words’.”
23. In my view, these principles underline and support the passage in the judgment of Kearns J. in DPP v. Moorehouse [2005] EISC 52, which is quoted in the judgment of Mr. Justice Clarke in the present case.
24. I consider that it is important in a case like the present, where the construction of a statutory provision for a penalty is in issue, to restate the well established and special legal provisions applicable to a statute which creates or imposes a penalty or detriment. However, in the circumstances of this case I do not believe that question of doubtful penalisation arises because I think that, properly construed, the Section in question here is unambiguous. I say this specifically on the basis of the central phrase in s.224B(3) of the Fisheries (Consolidated) Act 1959. This is the phrase “all or any”. Regard must also be had, of course, to the nature of the statutory provision in question which is one which creates an offence and provides a penalty for it.
“All or any”
25. The broader context of the words quoted above is:
“forfeiture of all or any of the following found on the boat to which the offence relates.
(a) any fish,
(b) any fishing gear”.
(Emphasis added)
26. The phrase “all or any” consists of two words separated by the disjunctive word “or”. According to the Oxford English Dictionary this disjunctive word was originally a “reduced form of OTHER”, and this derivation is suggestive. It suggests that the word after or is different or “other” than the word which precedes it. The same dictionary, addressing the contemporary meaning of the word or finds it in the following senses:
27. I consider that the Oxford Dictionary aptly states the contemporary meaning of the disjunctive or. Where two things are separated in speech or writing by the word “or” they are distinguished from each other or set in anthesis by or; they are set up as alternatives to the other word or words so separated. It follows that the words so separated are not identical but are different in nature or meaning.
28. If the statutory phrase of relevance here read:
29. But the subsection is not worded in that way. In that Act as passed by the Oireachtas the words “or any” follow the word “all”. On the ordinary and natural meaning of words, the effect of this addition is to create an alternative to the forfeiture of “all” of the gear and catch. Bearing in mind that the effect of this part of the subsection is to create a penalty, that alternative can only be to permit the forfeiture of some of the gear or catch, instead of all of the gear and catch. Since one is dealing with a penalty, which can be imposed only on conviction before a court, it follows that the selection of which of the alternatives to adopt is a function of the trial judge. Section 224B(3), and in particular the emphasised words, creates not a mandatory forfeiture of all the fish or fishing gear found on the relevant vessel, but a discretion as to whether to order the forfeiture of all of the gear or fish, or of only some of the gear or fish. This appears to me to be self evidently so by reason in particular of the use of the word “or” which is disjunctive, and whose effect is specifically to create alternatives. The actual disposal requires to be selected, from amongst the alternatives created by statute, by the trial judge in the Circuit Criminal Court.
30. The foregoing arises primarily from the ordinary and natural meaning of the common word or. I believe, however, that it is supported by a consideration of the true meanings of the word all and any.
31. There is an element almost of artificiality in having recourse to a dictionary to ascertain the true meaning of such exceedingly common words. The result of the exercise, however, is confirmatory of what I believe to be the ordinary or man-in-the-street meaning. Thus, All is defined as follows in the Oxford English Dictionary:
(1) “The entire or unabated amount or quantity of the whole; extent, substance or compass of the whole.
(2) All that is possible; the greatest possible.
(3) The entire number of; the individual components of, without exception.”
32. The foregoing in and of itself appears to me to require that any thing (here signified by the word any), any entity which is presented as an alternative to all, must of necessity be a part of, a lesser amount of that all.
33. Any is defined in the same source as follows:
“An indeterminate derivative of one, or rather of its weakened adjectival form, “a” “an”, in which the idea of unity (or, in plural, partitivity) is subordinated to that of indifference as to the particular one or ones that may be selected.”
34. It is odd, in seeking the dictionary meaning of a common word, to find it explained by the use of a much less common word, such as “partitivity”. However that unfamiliar word connotes merely the status of being part of something else, that other thing being the whole represented by the term all in the subsection.
35. On the view I take it is unnecessary to examine any other phrases in the subsection. Lest the point arises elsewhere, however, I wish to express my agreement with Mr. Justice Clarke’s construction of the phrase “liable to”.
36. I do not consider that the words “all or any” can be said of themselves to create an ambiguity. What they create is a discretion to be exercised by a judge in the Circuit Court. Until the judge has completed the trial it naturally cannot be known which of the alternatives created by these words he will select, for that will depend on the individual facts and circumstances of the offence and of the offender. But that uncertainty, which of its nature cannot be resolved until the end of the criminal process, is not an ambiguity: there is an unambiguous creation of a discretion which must be judicially exercised.
37. I do not consider, either, that the use of the phrase “all or any” would permit a discretion to order no forfeiture at all on conviction and to that extent I would not express the discretion created by the phrase as being “a discretion as to what fish (if any) and what gear (if any) are to be forfeited”. I say this because “any” refers to a part of a whole, that being the aspect of the word’s connotation in relation to which the Oxford English Dictionary uses the term “partitivity”.
The Official Translation.
38. It is a peculiarity of this case (but only that) that the phrase which I regard as dispositive, “all or any” does not appear in the official translation of s.224B(3) at all. The Irish version, by contrast, is:
“Dlífear forghéilleadh a dhéanamh ar a bhfaighfear díobh seo a leanas…”
I would translate this as meaning:
“forfeiture may be levied on what is found of the following things on the boat”.
39. An argument might be raised as to whether that phrase incorporates the possibility of forfeiture of a quantity of what is found on the boat less than the whole, but that would be a different and more complicated argument than the one based on the English language version.
40. The Act of 1959, as appears from its official text, was passed in the English language so that the Irish version has the status merely of official translation, and not that of an alternative original version.
41. I concur with the conclusion expressed in the judgment of Mr. Justice Clarke.
Judgment of Mr. Justice Clarke delivered the 17th October, 2013.
1. Introduction
1.1 It can, I think, safely be said that the legislation governing fisheries and fishing in Ireland is both complex and highly technical. There is, of course, a significant overlay of European Union law by reason of the many measures adopted by the Union legislature in the context of the Common Fisheries Policy. This appeal focuses, at least so far as the primary issue with which this Court is currently concerned, on one aspect of that regime.
1.2 Section 224B(3) of the Fisheries (Consolidation) Act, 1959, as inserted by s. 5 of the Fisheries (Amendment) Act, 1983, lies at the heart of these proceedings. That section creates an indictable offence of fishing in breach of the regulations to which it refers. Those regulations are Irish regulations which implement European legislation. The applicant/appellant ("Mr. Montemuino") currently faces criminal proceedings on indictment for allegedly failing to record the true quantity of forkbeard caught and retained on board his ship, which failure is said to be in breach of the relevant European Union regulations (being Council Regulation No. 2847/93 establishing a control system applicable to the Common Fisheries Policy and Commission Regulation No. 2807/83 laying down detailed rules for recording information on Member States' catches of fish as amended). As a result it is alleged that Mr. Montemuino is in breach of the Sea Fisheries (Control of Catches) Regulation 2003 (S.I. No. 345/2003) and, thus, is said to be guilty of an offence under s. 224B(3) of the 1959 Act.
1.3 Mr. Montemuino launched a challenge to the constitutionality of the s. 224B(3) which challenge failed in the High Court before Feeney J. (Montemuino v Minister for Communications & Ors [2009] 1 ILRM 218). Mr. Montemuino appealed to this Court. However, when the matter was first at hearing a question arose as to the proper interpretation of the section in question and the matter was put back for further submissions and argument. In order to understand the precise issue of construction which arose, it is necessary to say a little about the section and the constitutional argument as it developed.
2. The Section and the Argument
2.1 The section in full reads as follows:-
"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."
2.2 The constitutional argument in the High Court proceeded on the assumption that the section provided for a mandatory forfeiture of all fish and all fishing gear which might be found on a boat where a conviction on indictment arose in respect of fishing by that boat on the occasion in question. It appears that the section had, in the past, been consistently viewed by the authorities as having that meaning. In simple terms, the case made before the High Court by Mr. Montemuino was that the mandatory and non-discretionary nature of such a penalty of forfeiture was disproportionate in the public law sense of that term and, for that reason, unconstitutional. On the particular factual context of this case, it was noted that the agreed value of all of the fish on board the relevant boat on the occasion in question exceeded €30,000 while the value of the forkbeard, in respect of which there was a failure to record, amounted to €600.
2.3 When the case was first at hearing before this Court on appeal, as a result of interventions by members of the Court, a question arose as to whether, on its true construction, the section did truly require a forfeiture of all fish and all fishing gear or rather whether the section permitted a sentencing judge of the Circuit Court to impose a forfeiture of whatever amount of fish and/or fishing gear seemed appropriate to meet the seriousness of the offence. It was that question which was put back for further submissions and argument. Before going on to consider and deal with those arguments a number of points need to be noted.
2.4 First, it was clear that, if the alternative interpretation of the section was correct, i.e. if the section should properly be interpreted as leaving a discretion with a sentencing judge, then the constitutional argument necessarily fell away for, in those circumstances, a sentencing judge would be entitled to impose whatever penalty of forfeiture was considered to meet all of the facts of the case. It is important to recall that the careful judgment by Feeney J. did not deal with the construction issue now under consideration precisely because that issue was not raised before him. As already pointed out that issue first arose out of questions asked by members of this Court in the course of the appeal.
2.5 Second, it does need to be noted that the regime for the imposition of penalties, for fishing in breach of the Irish regulations which implement the relevant provisions of European legislation on the Common Fisheries Policy, has since been amended so that the issue which arises in this case is now historical although the Court was informed that there are a significant number (perhaps of the order of 60) of cases pending which relate to offences alleged to have been committed before the relevant amendments were put in place and which, therefore, might potentially be affected by the decision in this case.
2.6 Finally, it should be noted that amongst the arguments put forward on behalf of Mr. Montemuino was an argument that, in interpreting the section, regard is required to be had to the so called double construction rule identified in the judgments of this Court in McDonald v Bord na gCon [1965] I.R. 217 and East Donegal Co-Operative v. The Attorney General [1970] I.R. 317. If it were necessary to resort to that test then it would, of course, be necessary to address the constitutional issues raised for the East Donegal principle only comes into play if a construction which might otherwise be placed on legislation would lead to that legislation being considered inconsistent with the Constitution. However, the first port of call always has to be to seek to ascertain what the legislation means by reference to the ordinary canons of construction. In that context, it is first appropriate, therefore, to turn to the meaning of the section in accordance with those canons.
3. The Ordinary Construction of Section 224B(3)
3.1 A number of aspects of the wording of the section need to be addressed. First, it should be noted that a person guilty of a relevant offence "shall be liable" to forfeiture. One of the issues canvassed was as to whether the phrase "shall be liable" carried with it a necessary implication that the entirety of the matters to which the convicted person was said to be liable must necessarily be imposed or whether legislation imposing a penalty in those terms simply exposed a convicted person to the specified penalty as a maximum allowing a sentencing judge to choose a lesser sentence if it was considered appropriate in all the circumstances of the case.
3.2 Counsel for the respondents ("the Minister") drew attention to The People (at the suit of the Attorney General) v Francis Murtagh [1966] I.R. 361, where the phrase “shall be liable” in s. 2 of the Criminal Justice Act 1964 was considered by the Court of Criminal Appeal and this Court, and the decision of this Court in Attorney General v Sheehy [1990] 1 I.R. 70 where the same phrase in s. 2(1) of the Fisheries (Amendment) Act 1978 was interpreted. The Minister says that both of those judgments are authority for the proposition that the phrase “shall be liable” must be construed as imposing a mandatory penalty rather than merely identifying the maximum penalty which could be imposed. However, attention was also drawn on behalf of Mr. Montemuino to a large number of offences where persons are said to be liable to a specific term of imprisonment on conviction where the relevant provisions have consistently been interpreted as providing for a term of imprisonment up to the amount specified but not necessarily of that amount. Well known examples include the offence of assault causing serious harm under s. 4 of the Non-Fatal Offences Against the Person Act 1997, where s. 4(2) provides, “A person guilty of an offence under this section shall be liable on conviction on indictment to a fine or to imprisonment for life or to both”, and the offence of theft under s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001, where s. 4(6) provides, “A person guilty of theft is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 10 years or both”. It would seem, therefore, that the phrase "liable to" may or may not, depending on its context, indicate a mandatory sentence or consequence or a maximum sentence.
3.3 Next, counsel for the Minister placed particular reliance on the fact that the language used in s. 224B(3) specifies forfeiture as being "a statutory consequence" of the relevant conviction. Attention was drawn to a number of other statutory provisions which use that language, including ss. 12 and 14 of the Fisheries (Amendment) Act 1949, and multiple examples in the Fisheries (Consolidation) Act 1959. It was argued that such language normally places the consequence concerned outside of the sentencing role of the judge dealing with a criminal conviction. Rather, it is said, the use of such language renders a forfeiture or other similar consequence a statutory result of the conviction rather than forming part of the sentence to be imposed by the Court on conviction. On that basis it is said that the consequence is mandatory rather than discretionary.
3.4 Finally, it is necessary to have regard to the fact that what is to be forfeited is "all or any" of the following which amounts to a reference to "all or any" of (a) any fish, (b) any fishing gear. The use of language such as "all or any" might, on one view, suggest that a choice was being given. On the basis of that argument, it is said on behalf of Mr. Montemuino that, if it had been intended that all fish and all fishing gear was to be forfeited, then different language could and should have been used to make that clear. It is, of course, the case that the word "any" can sometimes be used in a context which means "all". If I say that I will buy any apples which my local shopkeeper has for sale, I might well be taken to be offering to buy his entire stock. However, in other contexts, as the dictionary definitions of "any" to which reference was made in the course of the hearing demonstrate, the word "any" can mean some of. In that context it is necessary to have regard to the fact that the section uses the word "all" and the word "any" joined by the word "or". "Or" normally carries with it the concept of alternatives. It seems to me to follow that the use of the term "all or any" at least brings with it the possibility that alternatives are being contemplated and, in that context, that "any" might mean "some of" as an alternative to "all".
3.5 Before going on to analyse the proper meaning of the section using ordinary canons of construction, it is also of some importance to note certain general principles of European Union law. It is clear that, where European Union legislation does not itself provide for penalties, it is for national law to specify the relevant penalties for breach of European Union measures. However, such national law must provide penalties which are equivalent to the penalties which would be imposed for like offences against national law and also must provide for effective penalties. At para. 62 of its judgment in Case C-167/01 Inspire Art [2003] ECR I-10155, the Court of Justice observed:
“The Court has consistently held that where a Community regulation does not specifically provide any penalty for an infringement or refers for that purpose to national laws, regulations and administrative provisions, Article 10 EC requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law. For that purpose, while the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalised in conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive.” (see also Case 68/88 Commission v Greece [1989] ECR 2965, paragraphs 23 and 24; and Case C-230/01 The Intervention Board for Agricultural Produce v Penycoed Farming Partnership [2004] ECR I-937).”
In order to assess whether a penalty is effective, reference must be had to the definition in para. 88 of the Opinion of Advocate General Kokott in Joined Cases C-387/02, C-391/02 and C-403/02 Silvio Berlusconi and Others [2005] ECR I-3565, where it was stated:
“Rules laying down penalties are effective where they are framed in such a way that they do not make it practically impossible or excessively difficult to impose the penalty provided for (and, therefore, to attain the objectives pursued by Community law).”
3.6 It would, in those circumstances, be appropriate to interpret an Irish provision designed to provide for penalties for breach of European Union law (such as the provision with which this Court is currently concerned), if at all possible, in a manner which would ensure that any relevant penalties met the test of effectiveness. However, it is difficult to see how, even if the construction sought to be placed on the section on behalf of Mr. Montemuino is correct, the penalties in this case would fail that test. The sentencing judge would retain the ability, in an appropriate case and in circumstances where it was considered necessary to impose it as a deterrent, to direct the forfeiture of all fish and all fishing gear even though a relevant offence might be said to specifically relate only to a portion thereof. In addition, the legislation provides for a substantial fine as being capable of being imposed in any event. On the facts of this case, the maximum fine of £100,000 (€126,973) exceeds, by a factor of approximately four, the total value of any possible forfeiture. I do not consider, therefore, that the proper construction to be placed on the section in the context of the dispute in this case could be influenced by European Union law for on either construction there would be what seems to be an effective penalty. On that basis it is necessary to turn to the proper construction of the section.
4. Discussion
4.1 I propose to deal with the point made on behalf of the Minister first. While it is true that the phrase “is liable to” can, depending on context, give rise to varying meanings, I am satisfied that a requirement that someone be liable to something "as a statutory consequence" of a conviction will, in most cases, mean that the specified consequence is to arise automatically in all cases rather than that the specified consequence is a maximum penalty carrying with it a discretion conferred on a sentencing judge to impose a lesser penalty of the same type. The normal meaning of “statutory consequence” of a conviction will take the relevant consequence, ordinarily, outside the scope of the sentencing process altogether. Whether legislation providing for such statutory consequences is consistent with the Constitution will, of course, depend on an analysis of whether such a mandatory penalty or consequence imposed outside of the sentencing process breaches the public law principle of proportionality.
4.2 However it is impossible in this case to ignore the use by the legislature of the term “all or any” which seems to convey the possibility of alternatives. It is difficult to see why different and clearer language would not have been used had the intention of the legislature been to require that there be a mandatory forfeiture of all fish and all fishing gear which might be found on board. In the ordinary way the use of the term “all or any” implies a discretion or choice. That term is not, in itself, ambiguous. The combination of the use of language referring to a “statutory consequence” and the separate use of “all or any” might be said to at least give rise to a tension. The former often implies a fixed and mandatory non-judicial result. The latter often implies a discretion.
4.3 It must be recalled that the court is here being asked to construe a penal provision. Whatever forfeiture is mandated by the section, same is a penalty imposed as a result of a criminal conviction. It is well settled that penal statutes should, in the ordinary way, be construed, in the case of ambiguity, in a manner favourable to the accused. That principle stems from the fact that penal consequences need to be expressed clearly in legislation. It follows that, where there is a lack of clarity and, thus, ambiguity, the penal consequences should not extend to those which might arise on a more severe construction precisely because, as a result of the ambiguity concerned, that more severe construction is not sufficiently clear. As Kearns J. pointed out in Director of Public Prosecutions v Moorehouse [2006] 1 IR 421:
“It is a well established presumption in law that penal statutes be construed strictly. This requirement manifests itself in various ways, including the requirement to use express language for the creation of an offence and a further requirement to interpret strictly words setting out the elements of an offence (Maxwell on the Interpretation of Statutes, 12th ed, (pp 239–240)).
If there is any ambiguity in the words which set out the elements of an act or omission declared to be an offence, so that it is doubtful whether the act or omission in question in the case falls within the statutory words, the ambiguity will be resolved in favour of the person charged. A desired statutory objective must be achieved clearly and unambiguously, particularly where statutes of strict liability, such as the Road Traffic Acts, are concerned. Thus in construing a penal statute, the court should lean against the creation or extension of penal liability by implication.”
4.4 In my view, at a minimum, the use of the words “a statutory consequence” together with “all or any” in this section creates an ambiguity such that it is not clear that the section intended the mandatory forfeiture of all fish and all fishing gear. Given the penal status of the section, it seems to me to follow that the section, when construed in accordance with ordinary principles of construction, therefore, must be interpreted in a way which requires that there be a discretion as to what fish (if any) and what gear (if any) are to be forfeited. As there is a discretion, it is clear that the only person who can properly exercise that discretion is a sentencing judge, for it is well settled that allowing any discretion as to penalty to be exercised by any person or body other than the judicial power is inconsistent with the Constitution (see Deaton v The Attorney General and the Revenue Commissioners [1963] 1 I.R. 170)
4.5 It follows that the ambiguity in the section leads to the conclusion that forfeiture must be imposed by the sentencing judge who has a discretion to forfeit anything up to and including the totality of any fish and/or fishing gear found on the vessel in question. The court understands, although it is not relevant to the issue with which the court is currently concerned, that in practice bonds are entered into which are substituted for any relevant fish and/or fishing gear so that what, in practice, is forfeited is a part of the bond up to the value determined by the sentencing judge. In that regard, McCarthy J. stated in Attorney General v Judge Sheehy [1990] 1 I.R. 70, that:
“In my view, where a sum is paid as a surety the statutory scheme does not contemplate forfeiture in kind. That being so, the sum paid stands in the place of the thing or things to be forfeited and is answerable as such to the order of forfeiture. The forfeiture is a statutory consequence of the conviction. Its operation on the surety should be stated in the order of conviction.”
4.6 In accordance with European Union law, it is, of course, necessary for any sentencing judge to have regard to the importance of ensuring compliance with European Union legislation and, in selecting an appropriate penalty, it must be assumed that any sentencing judge will properly take such factors into account subject also to the requirement of both Irish and European Union law that any penalties imposed also be proportionate.
4.7 On the basis of that interpretation, it is unnecessary to apply the double construction test for the interpretation arrived at as a result of the application of ordinary principles of construction does not give rise to any constitutional difficulty.
5. Conclusions
5.1 It follows, therefore, that the construction ultimately urged on the Court on behalf of Mr Montemuino is correct. By virtue of the provision being a penal statute and of the ambiguity identified in this judgment, I am satisfied that the section must be construed as conferring a discretion on a sentencing judge to determine the appropriate amount of forfeiture that is to apply in respect of fish and/or fishing gear found on a relevant vessel.
5.2 On the basis of the section having that meaning, it is clear that no question as to the consistency of the section with the Constitution arises and that, therefore, the specific relief sought in these proceedings and on this appeal must be refused. I would propose that the Court might hear counsel further as to whether any alternative relief could or should be granted.
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