John O’Connor and Christopher McCarthy of Kilbaha, Moyvane, Co Kerry, are charged with unauthorised turf-cutting on a designated area of conservation, Moanveanlagh Bog, outside Listowel. They are due before Kerry Circuit Court for allegedly extracting turf without authorisation.
Yesterday in the High Court, Mr Justice Michael Peart granted leave to the two men to bring their challenge and put a stay on their prosecution pending the outcome of the action. The case will come before the High Court again in April.
Lawyers for Mr O’Connor, an agricultural contractor and Mr McCarthy, a machine operator, claimed before the High Court that the prosecution should be halted on grounds including that the charges are unconstitutional and lack proportionality. Their action is against the DPP, the Circuit Court judge to be assigned to hear the case, the Minister for Arts, Heritage, and the Gaeltacht, Ireland, and the Attorney General.
Independent TD Luke ‘Ming’ Flanagan, spokesman for the Irish Turf Cutters and Contractors Association, was in court to support the men.
Counsel for the men, Richard Humphreys, said his clients are facing charges for allegedly cutting turf on bogland from which local families have “taken turf... for generations”.
Both are charged with extracting peat from the bog which significantly or adversely affected the integrity of the site contrary to regulation 35 and 67 of the European Communities (Birds and Natural Habitats) Regulations 2011.
The offence with which the men are charged, counsel said, was created in September 2011 by way of ministerial regulations, which transposed the regulations into Irish law. However, it is their case that it was not within the powers of the minister to create the offence in question. Describing the offence as a “blunderbuss provision”, counsel said, if found guilty, his clients could face a maximum jail sentence of three years and or a fine up to €500,000.
Counsel further argued that the creation by the minister of an indictable offence under the EU Habitats regulation is unconstitutional, invalid, of no legal effect, and outside the powers of the minister.