Judgment
Title: | Montemuino -v- Minister for Communications Marine and Natural Resources & ors |
Neutral Citation: | [2013] IESC 40 |
Supreme Court Record Number: | 365/08 |
High Court Record Number: | 2006 936 JR |
Date of Delivery: | 10/17/2013 |
Court: | Supreme Court |
Composition of Court: | Denham C.J., Hardiman J., Fennelly J., Clarke J., MacMenamin J. |
Judgment by: | Hardiman J. |
Status: | Approved |
Details: | Adjourn re relief and costs |
| Judgments by | Link to Judgment | Concurring | Hardiman J. | | Fennelly J. | Clarke J. | | Denham C.J., Hardiman J., Fennelly J., MacMenamin J. | |
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[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.