Dáil Éireann Debate, Wednesday - 26 March 2014
3. Deputy Thomas Pringle asked the Minister for Agriculture, Food and the Marine his views on whether the provision included in section 6(1) of SI No. 3 of 2014 is fair and proportionate and in compliance with the principle of natural justice; and if he will make a statement on the matter. [13995/14]
Amharc ar fhreagraSection 6(1) of SI No. 3/2014 states that points assigned to a holder of an Irish licence remain assigned regardless of any criminal proceedings pending or the outcome of such proceedings in respect of the serious infringement concerned. Is this provision in compliance with the principles of natural justice and appropriate for inclusion in the regulations?
SI No. 3/2014 gives effect to the requirements of Article 92 of EU Council Regulation 1224/2009 and Commission Implementing Regulation 404/2011. In accordance with the EU regulations, the statutory instrument gives full effect to a points system for the licence holder of a sea-fishing boat. The points system applies where a serious infringement of the Common Fisheries Policy by a fishing vessel - this is applicable to EU and third country vessels - is detected within the exclusive fishery limits of the State or for an Irish vessel wherever it may be.
The statutory instrument was prepared in close co-operation with the Office of the Attorney General. I have full confidence that it is legally sound and consistent with the requirements of the EU regulations, the Irish Constitution and natural justice. The purpose of the EU regulations, as stated in the recital, is to create a level playing field in fisheries control across the EU. All member states have given effect to Article 92 of the Council Regulation in respect of the points system to apply for licence holders.
The points system for licence holders set out in the statutory instrument is not the administration of justice as understood in the criminal sense. It is a separate and parallel administrative system with a lower burden of proof. It is important to note that there will be no immediate sanction for a licence holder following the application of points. Rather, there must be persistent serious infringements leading to an accumulation of a certain number of points before any suspension will occur. The accumulation of points for persistent serious infringements of the Common Fisheries Policy will lead to the suspension of a sea-fishing boat licence for a period from two months to one year. In extreme cases, persistent serious fisheries infringements could lead to the permanent withdrawal of a licence. It should also be noted that provision is made in the statutory instrument for a robust and effective appeals process. Therefore, a licence holder may apply to an independent appeals officer against any proposal to apply points to him or her. I have already appointed an Appeals Officer in accordance with the provisions of the statutory instrument. The statutory instrument also makes provision for appeal on a point of law to the High Court in respect of the decision of an appeals officer.
The Deputy's question is whether points continue to apply following the taking of a legal case which is lost. The answer to that question is "Yes, they do," in the same way that there is a difference between a civil and criminal case in a court of law. It is akin to a person receiving penalty points having been caught driving too fast. However, those concerned may appeal the penalty points to an appeals officer and the High Court.
Thank you, Minister.
The levels of burden of proof in a criminal case versus this particular statutory instrument are different.
I must ask Deputies to adhere to the time allowed.
The Minister is trying to make the case that there is a difference between this penalty points system and criminal proceedings. However, where criminal proceedings are taken and they fail, in law no offence has taken place. If there is a difference, this provision should not form part of the statutory instrument. The Commission regulation and Council regulation are silent on this matter. There is no reference in either of those regulations to any national proceedings affecting the penalty points system. I believe that where legal proceedings are taken and they succeed, thereby indicating that in law no offence has taken place, the penalty points should be revoked. It is another matter as to whether any case taken would be likely to succeed. However, that is a separate issue. In terms of confidence and natural justice, it should be the case that where a case is won the penalty points are not applied.
I put the same question the Deputy is asking of me to the Attorney General and officials in my Department - namely, whether we do could that and remain consistent with the Council regulation. It was made clear to me, under a point of law, that what we are dealing with in this regard is two parallel systems. The Sea-Fisheries Protection Authority, SFPA, will apply penalty points in respect of breaches of the rules. While in this regard a particularly high burden of proof will not be required, proof will be required before points can apply. Those awarded penalty points will have an opportunity to appeal, which is an entirely separate system from going to court. Where a legal criminal case is taken against a skipper or owner of a boat in respect of infringement of the rules, the burden of proof and punishment is much higher. It is a separate system. We cannot, I am told, in law overlap the two systems. They are different systems in terms of the burden of proof and punishments involved. The penalty points system is aimed at being a deterrent, one that is equal in respect of everybody across the European Union. The two systems need to remain separate.
This section was described recently by the SFPA at a committee meeting as a novel approach. I imagine it is not an approach that is taking place across the remainder of the European Union. It appears that Irish fishermen are again to be treated separately and differently from other fishermen across the European Union in terms of the application of this process.
It is important to note that by the time criminal proceedings conclude the timeframe allowed under the regulations in respect of an appeal will have lapsed. Therefore, the outcome of the criminal proceedings could not be relied upon as a point of appeal in terms of the penalty points. I believe this will be injurious to fishermen in the future.
This will be applied in other countries also. It is not being applied to Ireland and not to other countries. There is a Council regulation that every country is required to implement. Had we not implemented this, there would have been consequences in that the Commission would have taken a case against Ireland. The Commission made very clear that it would do so. It will also take cases against other countries if they do not implement this regulation. This is happening everywhere. It is not only an Irish initiative.
Fishermen should view these two courses of action as entirely different. I believe there will be cases where penalty points are applicable and in respect of which no legal case will be taken. There will equally be cases in respect of which legal cases will be taken and no penalty points will be applicable. There will be some cases that may involve both but there will be two separate enforcement proceedings involved. I am told, with some authority, by the Attorney General's office that the two systems need to be treated separately from one another.
