Denham C.J.
Hardiman J.
Fennelly J.
Clarke J.
MacMenamin J.

Between/

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 I.L.R.M. 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."

2.3 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).”

“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).”

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 I.R. 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.”

4.5 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.”

4.7 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.