Court of Appeal: Master of a sea fishing vessel fails in bid to overturn €105,000 fine for breaching EU regulations

About this case:

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On 22nd November 2013, the sea fishing vessel Annelies Ilena – of which Mr Gerrit Plug is the Master – was boarded by naval officers and sea fisheries protection officers (SFPO) from the Irish Naval Service vessel, L.E. Roisin, which was on routine patrol in seas off County Donegal. During their inspection of the boat, the SFPO found that Mr Plug was in breach of several EU and EEC regulations.

Three counts

On boarding the vessel, the officers established that Mr Plug’s vessel had been fishing since 8th October 2013, and that there were no discarded fish (“discards”) recorded in the log book since that date. Mr Plug was directed to update his log book in accordance with Art. 47(1)(d) of the Implementing Regulations (Council Regulations) (EU) No. 404/2011, upon which he indicated that there were no discards and none were recorded.

An inspection established that there were in fact discards, weighing 53.04 Kg. and which by reason of their weight were required to be recorded in the logbook. The failure to so record these discards in the log book was the basis for count no. 1 – failing to record all estimated discards above 50 Kg. of live weight equivalent in the vessels’ log book in contravention of Article 14.4 of the Council Regulations (EEC) No. 2233/2009, and contrary to S.I. 320/2012 and s. 14 of the Sea Fisheries and Maritime Jurisdiction Act 2006.

Count no. 3 related to the alleged unlawful discarding of fish subject to quota, namely mackerel and horse mackerel in the course of fishing operations; discarding species subject to quota during fishing operations in contravention of Article 19 of the Council Regulations (EEC) No. 850/98 as inserted by Article 1 of Regulation (EU) 227/2013 of the European Parliament and of the Council and contrary to Sea Fisheries (Technical Measures) Regulations 2013 (S.I. No. 197/2013) and s. 14 of the Sea Fisheries and Maritime Jurisdiction Act 2006 –.

Count no. 5 concerned the space between bars in the vessel’s water separator; exceeding the maximum allowed space between bars in the water separators of a pelagic vessel targeting mackerel, herring or horse mackerel as prohibited by Article 32.(a) of Council Regulations (EEC) No. 850/98 as inserted by Article 1(15)(i) of Regulation (EU) 227/2013 of the European Parliament and of the Council contrary to the Sea Fisheries (Technical Measures) Regulations 2013 (S.I. No. 197/2013) and s. 14 of the Sea Fisheries and Maritime Jurisdiction Act 2006.

It was alleged that that a number of spaces exceeded the permitted measurement thereby allowing larger fish be discarded into the sea in circumstances where such fish ought to have been retained on board the vessel. The issue in relation to this count concerns the date on which the separators were examined and the spaces measured. That inspection and measurement took place on 24th November 2013, in circumstances where the vessel had been boarded and placed under detention on 22nd November 2013, and had been detained at Killybegs Port between that date, and 24th November 2013.

Contended Issues

Mr Plug’s challenge to count no. 1 was that it should have been withdrawn from the jury since the prosecution evidence did not disclose the commission of any offence under the Regulations specified. Justice Mahon stated that the issue for this charge was whether there was evidence of a breach of the recording obligation – he was satisfied that the charge had sufficiently described the offence in respect of which SFPO Hedderman gave evidence to the trial, and the issue was properly left to the jury for its determination.

Contending count no. 3, Mr Plug stated that there was no evidence that any fish were being actually returned to the sea – however the Court of Appeal was satisfied that the trial judge’s ruling was correct on the basis of the evidence heard, and that consideration was properly left to the jury.

In relation to count no. 5, Mr Plug maintained that in order for the prosecution to prove that he had committed the offence of breaching Art. 32(a)(i) of Council Regulation (EC) No. 850/98, they were required to establish that (a) that the maximum permissible gap of 10mm between the separator bars was exceeded; (b) that the vessel was a pelagic vessel; (c) that the vessel was targeting mackerel, herring and horse mackerel; and (d) that the vessel was in the NEAFC Convention Area.

Justice Mahon stated that evidence of measurements taken on 24th November 2013 could reasonably ground a charge to the effect that the gaps between the separator bars exceeded the maximum permitted measurement in some instances on 22nd November 2013; evidence from Lt. Michael Devaney and SFPO Hedderman adequately established that the fishing vessel was a pelagic fishing vessel; there was ample evidence that the species targeted included mackerel and horse mackerel; and there was evidence from Lt. Commander Terence Ward that he plotted the position of the vessel at the time of the inspection, and that at that time it was in the NEAFC convention area.

Conclusion

In summing up, Justice Mahon stated that the prosecution was both difficult and unusual, involving “a detailed consideration of complex EU Regulations”; the application of those regulations to the activities of Mr Plug’s large fishing vessel at sea by sea fisheries protection officers; its detention at Killybegs; and the subsequent examination of that fishing vessel when tied up in harbour.

That being said, the issues raised by Mr Plug in appeal had been properly left to the jury for its consideration and verdict – consequently, Mr Plug’s appeal was dismissed.