Ms Justice Iseult O’Malley’s decision, affecting a company which owns a vessel called the Anders Nees, followed another High Court ruling less than two weeks ago striking down the entire penalty point system for fishing vessels.
Penalty points were introduced in 2014 under the EU Common Fisheries Policy regulations to deter illegal, unreported or unregulated fishing. Once a vessel gets 18 points, the licence is suspended to two months and it rises on a scale to a year’s suspension for 72 points. If it gets 90 points, the licence is permanently withdrawn.
In the recent court decision invalidating the entire system, Mr Justice Tony O’Connor said the scheme introduced by the minister of the marine does not require that established systems for independent adjudication and recourse to the courts can be ignored.
Mr Justice O’Connor is to make final orders later this week in that case, involving the trawler, the Tea Rose, which was detained by fishery protection officers in April 2015. In the meantime, Ms Justice O’Malley delivered her judgment in the case taken by the firm which owns the Anders Nees, the Crayden Fishing Company.
She said as there was no challenge to the validity of the regulations, she was going to proceed with her judgment on the question of fairness of procedures.
She said the Anders Nees was inspected by fishery protection officers on December 2, 2014, after it returned to port. A large quantity of unboxed fish was found in a compartment. The master of the boat admitted the fish was additional to what had been recorded in the logbook and following further examination, it was clear there had been an under-recording of whiting by 126.8% and over recording of all under species, she said.
Later, the vessel owners were told they would get 12 penalty points for a number of serious infringements of the regulations.
The company appealed that to an appeals officer established under the scheme and also brought High Court judicial review proceedings.
It was claimed that the process whereby points are imposed was a breach of fair procedures because of the company had no opportunity to be heard before a panel, which determines the number of points to be imposed, has made its decision.
The minister and the Sea Fisheries Protection Authority argued the licence holder does have the right to be heard at appeal stage. The law does not require that right be afforded at the preliminary phase, it was stated.
Ms Justice O’Malley said, in her view, it is necessary to inform a licence holder that a panel will be convened to assess evidence of alleged infringements and whether to assign points to the licence.