BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

1. In these proceedings the Applicant seeks by way of Judicial Review a number of reliefs as follows:-

2. The Applicant also seeks damages.

3. The Applicant is engaged in the business of falconry and is the proprietor of the Irish Falconry Centre at Quarry Field House, Bunninadden, Ballymote, Co. Sligo.

4. In stating the grounds upon which he seeks these Orders the Applicant claims that the first named Respondent's refusal to grant him the relevant licences is ultra vires because it is unreasonable and/or irrational. He claims that the first named Respondent adopted a fixed and inflexible policy and did not take into account all the circumstances as detailed by the Applicant to him and also failed to consider the reasonable interest of the Applicant and of his livelihood. The Applicant also claims that he fulfils the requirements for the grant of the relevant licences pursuant to the provisions of the Wildlife Act 1976 (Birds of Prey) Regulations 1984 and for the issue of C.I.T.E.S. Certificates under Regulation EEC No. 3626/82 and that the first named Respondent has failed, refused and neglected to state any valid reason for the purported refusal of the Certificates.

5. The first named Respondent (who opposes the application on behalf of all the Respondents) opposes the application in the main on the ground that the refusal to grant the relevant licences was in accordance with law; that reasons were given to the Applicant for the said refusal; and that the first named Respondent was fulfilling his duty and responsibility under the law to conserve wildlife within the State.

6. The legal framework governing the matters at issue in these proceedings is contained in the Wildlife Act 1976 and the Regulations made thereunder which are the Wildlife Act 1976 (Birds of Prey) Regulations (S.I. 8 of 1984). These Regulations, insofar as they are relevant to the matters at issue in these proceedings, provide as follows:

7. The Regulations go on to stipulate the conditions under which such birds are to be kept in captivity and to provide for inspection by "an authorised person" .

8. The duties of the first named Respondent under the Wildlife Act 1976 and under these Regulations are in practice carried out by the National Parks and Wildlife Service, which is part of the Department of Arts, Culture and the Gaeltacht.

9. The National Parks and Wildlife Service is also the Management and Scientific Authority for Ireland for the Convention on International Trade in Endangered Species (C.I.T.E.S.). This Convention has been implemented in European Union Member States by European Council Regulation (EEC) No. 3626/82 of 3rd December, 1982. Under this Regulation, the Peregrine Falcon is listed as a species in which international trade is prohibited. However, under Article (VII) of the Regulation, where the management authority of the State of Export is satisfied that any specimen of an animal species has been bred in captivity, it may issue a certificate under the Regulation to that effect. This certificate will permit the animal or bird, as the case may be, to be moved from one State to another. It is clear that the purpose of this Regulation is to prevent the export of wild specimens of endangered species from their country of origin. Under the Regulation it is for the Applicant for a C.I.T.E.S. Certificate to satisfy the management authority that the specimen in question has been captive bred.

10. The Applicant, Michael Devlin, whose full name is Michael Devlin Boon, is the proprietor of the Irish Falconry Centre at Bunninadden, Ballymote, Co. Sligo. Under the name Michael Boon he was apparently involved in the business of falconry in the United Kingdom for a period of some 18 years. In the year 1991 he came to Ireland and set up business. In his Irish business he uses the name Michael Devlin.

11. He applied to the National Parks and Wildlife Service for the licences which he required under the Wildlife Act 1976 (Birds of Prey) Regulations of 1984 (the 1984 Regulations). These were of two kinds, firstly a possession licence which would entitle him to hold birds of prey and secondly a falconry licence which would entitle him to use birds of prey for hunting. For his business the Applicant states that he also required C.I.T.E.S. Certificates which would permit him to export and import birds. He applied for licences for the years 1992, 1993 and 1994 but was not in fact issued with them until April 1994. At that stage he was issued with both a possession licence and a falconry licence on foot of an application dated the 31st January, 1994. These licences entitled him to possess and engage in falconry with certain birds of prey which were listed in the schedule to the possession licence. The possession licence which was numbered BP (P) 88/94 is exhibited by the Applicant with his grounding Affidavit. The schedule includes a number of varieties of hawk including Harris Hawks, Kestrels and Redtails. In particular it listed four Peregrine Falcons, two of which were adult birds and two of which were captive bred in 1993. Peregrine Falcons, as distinct from the other type of hawks which the Applicant kept, are included under the Fourth Schedule of the Wildlife Act 1976 as "protected wild birds" and as such are granted special protection under Section 22(6) of the Act. The effect of Section 22(6) is that it is an offence to capture or kill such a bird and that it is not a defence to prove that capturing or killing such a bird " was urgently necessary for the purpose of stopping damage" to livestock, crops, forest plantations or fisheries. Since Peregrine Falcons are so specially protected under the legislation, the National Parks and Wildlife Service had a particular concern in regard to their origin, status and provenance.

12. The falconry licence BP (F) 88/94 which was issued to the Applicant on 18th April, 1994 permitted the Applicant to engage in falconry during the period beginning on the 18th day of April, 1994 and ending on the 31st day of January 1995 subject to compliance with the Wildlife Act 1976 (Birds of Prey) Regulations 1984 and to certain conditions. The second of these conditions provided that "a return giving particulars of the liberation, escape, death, sale or breeding of any of the birds to which this licence applies, must be made to the Minister of State at the Department of Finance on expiry of the licence, on application for a renewal or on a request being made in that behalf by the Minister of State." The wording of this condition of course refers to the situation when the Parks and Wildlife Service was under the aegis of the Office of Public Works and before its functions were transferred to the Department of Arts, Culture and the Gaeltacht.

13. On the 23rd November, 1994 the Applicant forwarded to the National Parks and Wildlife Service an application for a licence to export a male Peregrine Falcon which he apparently wished to take abroad with him on holiday. On 20th November, 1994 Mr Peter Brazel of the National Parks and Wildlife Service replied to him by letter. It appears from the text of this letter that the Applicant and Mr Brazel had been in communication by telephone in the interval. In his letter Mr Brazel referred to the Applicant's wish to obtain C.I.T.E.S. Certificates and export licences and he also sought information in regard to the Applicant's birds as follows:

14. The Applicant then, in January 1995, applied for a renewal of his possession and falconry licences. Considerable correspondence between the National Parks and Wildlife Service and the Applicant and the Applicant's Solicitors, Messrs Johnson & Johnson of Ballymote, Co. Sligo, ensued. It is unnecessary to survey this correspondence in detail. In summary, the National Parks and Wildlife Service relying on the second condition of the 1994 falconry licence, refused to issue new licences until the Applicant provided the detailed reconciliation and information which they sought. In his Affidavit sworn on the 26th June, 1996 the Applicant states that "he was not in a position to supply the details as sought". Given that the Applicant had had 18 years experience in working with protected birds in the United Kingdom and that he must have been aware of the condition attached to his 1994 falconry licence, it seems somewhat strange that he did not keep and have available exact records in regard to the relatively small number of birds which he kept. The letters which he wrote to the National Parks and Wildlife Service are, from time to time, somewhat aggressive in tone. However, it should be said that he had reason to complain of delays on the part of the Service in replying to his correspondence.

15. Eventually on the 13th July, 1995 the Applicant swore an Affidavit in which he gave details of birds transferred by him in 1994 and stated.

16. This Affidavit was forwarded to the National Parks and Wildlife Service by the Applicant's Solicitors, Messrs Johnson & Johnson. In the course of their accompanying letter Messrs Johnson and Johnson stated:

17. Following some further correspondence, the Applicant on the 19th October, 1995 was granted possession and falconry licences which would expire on 31st January, 1996. These licences contained five conditions. Through his Solicitors the Applicant raised objections to three of these conditions. His strongest objection was to the fourth condition, which provided that "the Minister for Arts Culture and the Gaeltacht may carry out, if he considers it appropriate, on any eagle, hawk or falcon or the young or eggs of any hawk or falcon which is referred to in the schedule to this licence, DNA analysis or other scientific testing by way of blood sampling or other suitable methods to be determined by the Minister" . In a letter dated 26th October, 1995 the Applicant's Solicitors expressed the Applicant's objection as follows:

18. Further frequent and lengthy correspondence ensued, dealing both with the question of DNA testing and with the disposal, loss or death of a number of the Applicant's birds. Eventually under the threat that his licences would be revoked, the Applicant agreed that the DNA testing could be carried out by the first named Respondent but stated that he personally would not co-operate or assist in the testing.

19. The first named Respondent was principally concerned with the origin and the provenance of the four Peregrine Falcons, being specially protected birds under the Wildlife Act 1976. In the Autumn of 1995 the Applicant informed the National Parks and Wildlife Service that the two adult Peregrine Falcons had been released "at hack" - a system of gradual release of such captive birds into the wild. The National Parks and Wildlife Services were still anxious to carry out DNA tests on the younger birds in order to confirm that they were siblings.

20. On 18th January, 1996 the Applicant applied for further possession and falconry licences for the period following the expiry of his then licences on 31st January, 1996. This application referred to four Peregrine Falcons, two of which had been released "at hack" the previous July and two still in the possession of the Applicant. During the month of January the Service made a number of contacts with the Applicant and an arrangement was made for DNA testing to be carried out on the 2nd February, 1996. On the 31st January, 1996 the Applicant wrote to the Service stating that the two remaining Peregrine Falcons had been lost. This letter was not received in time to prevent the attendance of designated officials who were to carry out the DNA testing on 2nd February. When they discovered that there were no Peregrine Falcons available for testing they expressed no interest in testing the other birds in the Applicant's possession and no tests were carried out.

21. On the 1st March, 1996, Mr Michael Canny, Director of the National Parks and Wildlife Service, wrote to the Applicant in reply to his application for new licences. The relevant section of Mr Canny's letter reads as follows:

22. On 7th March, 1996 the Applicant's Solicitors wrote in reply as follows:

23. Mr Canny replied on the 2nd April, 1996 stating that there was no provision for the hearing of an oral submission by the Applicant in support of his appeal but that if he wished to elaborate on or furnish additional evidence or documentation on the grounds of appeal set out in Messrs Johnson & Johnson's letter, that might be done by the 20th April. The Applicant's Solicitors replied on 18th April, 1996 stating "the grounds of our clients appeal are comprehensively set out in our letter of the 7th ult. and we should be obliged if you would arrange to let us have a decision on the appeal as a matter of urgency."

24. On the 23rd May, 1996, Mr Canny wrote to the Applicant's Solicitors notifying them that the appeal had been rejected and the decision to refuse licences confirmed. The Applicant was also directed to dispose of his birds within a period of six weeks. The matter of the issue of C.I.T.E.S. Certificates had never been finally decided and in his letter of 23rd May, Mr Canny stated in this regard that those applications would be considered in the context of the Applicant's proposals for the disposal of his birds. There was then some further correspondence in regard to the issue of C.I.T.E.S. Certificates but such Certificates were not issued.

25. On the 8th July, 1996 the Applicant sought leave to issue the present Judicial Review proceedings. Leave was granted by the Court (Kelly J.) and a stay was placed on the first named Respondent's direction to the Applicant to dispose of his birds. I understand from Counsel for the Applicant that the Applicant is at present resident in France and that he has his birds with him there. He is, however, anxious to return to this country and re-commence his falconry business.

26. Senior Counsel for the Applicant, Mr Keane, in his submission to the Court stated that the essence of the Applicant's case was the unfairness of the procedures employed by the first named Respondent. He referred to the three reasons given by the first named Respondent to justify the refusal to grant new licences as set out in Mr Canny's letter of 1st March, 1996. With regard to the first reason - the failure to present the Peregrine Falcons for DNA testing as requested - Mr Keane submitted that the Applicant had informed the Parks and Wildlife Service that two of the Peregrine Falcons were released "at hack" and that the other two were lost. The complaint made by the first named Respondent would be relevant only if the Applicant in fact had the birds in his possession and had kept them hidden from the first named Respondent. No suggestion had been made that this was the case.

27. With regard to the second reason - the stated refusal to assist and co-operate in the proposed DNA testing - Mr Keane submitted that the Applicant had been willing to allow all the birds in his possession to be DNA tested. The Parks and Wildlife Service themselves had decided not to test any birds other than the Peregrine Falcons and in particular had decided not to test the other birds on 2nd February, 1996. He also pointed out that condition (4) of the 1995 licences provided that the Minister for Arts, Culture and the Gaeltacht may carry out DNA analysis or other scientific testing of the relevant birds but did not require active co-operation on the part of the Applicant in this testing.

28. With regard to the third reason, Counsel submitted that the Applicant was given no real opportunity to deal with this reason. He had sought an oral hearing and he had cogent views on the matter which he could have put forward at such a hearing. He could have enlarged on and explained the matters put forward by his Solicitor in his letter dated 7th March, 1996. He submitted that this was a clear breach of the "audi alteram partem" rule.

29. In this context Counsel referred the Court to a number of cases dealing with the importance of fair procedures and of the "audi alteram partem" rule. These included State (Gleeson) -v- The Minister for Defence [1976] IR. 280, Hogan -v- Minister for Justice [1976-7 ] ILRM. 184, State (Irish Pharmaceutical Union) -v- Employment Appeals Tribunal [1987] ILRM. 36 and TV3 and Others -v- Irish Radio and Television Commission [1994] 21R 439. In all of these cases it was held that where a person's livelihood was threatened by the action of the various respondent bodies, the applicant should receive a clear warning of the complaints against him and have a reasonable chance to respond to any accusations made or any findings of fact against him. He should also have a proper opportunity to be heard and in general there must be compliance with fair procedures. The Applicant's case was that the reasons given were invalid or irrational and that he had not

30. Counsel for the Respondents, Mr Murphy, in both written and oral submissions to the Court argued that the first named Respondent ("the Minister") at all times acted intra vires his powers, duties and responsibilities pursuant to the Wildlife Act 1976 and the Wildlife Act 1976 (Birds of Prey) Regulations. He argued that in order to succeed in his claim that the Minister acted ultra vires, the Applicant would have to show that the Minister acted unreasonably, irrationally or in an arbitrary fashion, without taking into account relevant considerations or having taken into account irrelevant considerations. The threshold of unreasonableness and/or irrationality had been defined in this jurisdiction as a decision which "plainly and unambiguously flies in the face of fundamental reason and common sense" . (The State (Keegan) -v- The Stardust Compensation Tribunal [1986] IR 642, O'Keeffe -v- An Bord Pleanala [1993] 1 IR 39). He pointed out that the earlier decisions had been recently reaffirmed by the learned Laffoy J. in the cases of SIAC Construction Limited -v- Mayo County Council (High Court, June 17th, 1997) and O' Reilly -v- O'Sullivan & Others (High Court, July 25th 1996).

31. With regard to the cases to which Counsel for the Applicant had referred, Mr Murphy submitted that these cases by and large dealt with direct employment situations rather than, as in this case, the issuing of licences under statute. In the context of licences he referred to International Fishing Vessels -v- Minister for the Marine [1989] IR 149 which dealt with the necessity to give reasons for a refusal to issue licences.

32. Referring to the Applicant's claim that the Respondent failed to state any valid reason for the refusal of C.I.T.E.S Certificates pursuant to Regulation EEC No. 3626/82, Mr Murphy submitted that the Regulation gives effect to the Convention on International Trade in Endangered Species and places the onus on the Applicant to satisfy the Minister, who is the appropriate management and scientific authority for Ireland under the Convention, that a particular species of falcon has been bred in captivity and is entitled to be certified as such.

33. Counsel for the Respondent referred to the judgment of O'Hanlon J. in the case of Rajah -v- College of Surgeons [1994] 1 IR 384 and submitted that there was a clear difference between an appeal procedure and Judicial Review; therefore the Court in reviewing the decision-making powers of the Respondent should not substitute its own view on the merits for that of the Respondent. He argued that the Applicant's grievance in the present proceedings was with the Minister's decision itself and not with the manner in which that decision was reached.

34. In considering both the factual background of this case and the submissions of Counsel, I must start from the point that, as held by the learned Blayney J. in the case of International Fishing Vessels Limited -v- The Minister of the Marine [1989] IR 149, the Minister, in taking a decision which was of such crucial importance for the applicant, was under a duty to act fairly and judicially and that the performance of such duties is subject to Judicial Review. In that case it was also held that is was incumbent upon the Minister for the Marine, when refusing to grant a fishing licence to the applicant, to give reasons for his refusal. The provision of reasons by the Minister was an essential pre-requisite to ensure fairness of procedures. In the present case it is clear that the first named Respondent is under a duty to act fairly and judicially and that the performance of his duties is subject to Judicial Review. Here, however, the first named Respondent has given reasons for his refusal and the contention of the Applicant is that his reasons are not valid, or that in reaching his decision to refuse the licences he was acting unreasonably, irrationally or in an arbitrary fashion.

35. However, it must also be borne in mind that in proceedings for Judicial Review it is the decision-making process and not the decision itself which is challenged or open to challenge. The remedy of Judicial Review does not provide an alternative form of appeal against administrative decisions as such. As was said by the learned O'Hanlon J. in deciding a preliminary point in the case of Rajah -v- College of Surgeons [1994] 1 IR 384 at 388:

36. I would a also accept the submission of Counsel for the Respondents in regard to the test which should be applied by this Court in deciding whether the first named Respondent's action in refusing the Applicant's licences was unreasonable or irrational - the test being whether it was a decision which " plainly and unambiguously flies in the face of fundamental reason and common sense ." In his judgment in O'Keeffe -v- An Bord Pleanala [1993] 1 IR. 39 at 71 the learned Finlay C.J. dealt thus with the question of irrationality:

37. This passage was relied on by the learned Laffoy J. in the case of SIAC Construction Limited - v- Mayo County Council (unreported High Court June 17th, 1997).

38. The procedures by which the Applicant applied to the first named Respondent for possession and falconry licences came within the legal framework of the Wildlife Act 1976 and the Wildlife Act 1976 (Birds of Prey) Regulations 1984. The purpose of the statute and of the Regulations made thereunder is set out in the long title of the 1976 Act as follows:

39. It seems to me that the procedures carried out by the first named Respondent did not exceed the powers contained in the Act and in the Regulations.

40. The whole history of the relationship between the Applicant and the first named Respondent was a difficult one. I have carefully reviewed the voluminous and lengthy correspondence which was exhibited with the Affidavits on both sides. Bearing in mind that it is not for this Court to seek to come to conclusions on the merits of the dispute between the parties, I have reached the opinion that it was open to the first named Respondent, on the evidence before him, to reach the conclusions which he did in regard to the reasons which he gave for the refusal of the possession and falconry licences. With regard to the C.I.T.E.S. Certificates, Regulation EEC No. 3626/82, which gives effect to the Convention on International Trade on Endangered Species, places the onus on the Applicant to satisfy the first named Respondent in his capacity as the "management & scientific authority" for Ireland under the Convention, that a particular species of falcon has been bred in captivity and is entitled to be certified as such. As far as the four Peregrine Falcons were concerned, on the facts it was neither unreasonable nor irrational for the first named Respondent to hold that the Applicant had failed to discharge that onus.

41. The Applicant's remaining claim is that the procedures adopted by the first named Respondent were basically unfair and were in breach of the " audi alteram partem " rule.

42. As was said by the learned President of this Court in his judgment in the case of McCormack -v- The Garda Siochana Complaints Board & Others (unreported 28th January, 1997) (at page 17 of this judgment):

43. It appears to me, however, in the light of the factual background to this case and in the light of the correspondence exhibited, that the Applicant had ample opportunity to put forward his point of view and to make his arguments to the first named Respondent over a period of some two years and that he took full advantage of this opportunity. From an early stage he also had the advantage of the advice and assistance of his Solicitors. It is true that he was not granted an oral hearing in the course of the Appeal procedure. As Mr Keane correctly pointed out, there does not appear to be any statutory basis whatever for such an Appeal procedure. Therefore there is clearly no statutory requirement for an oral hearing. It does not appear to me that it is in fact a requirement of constitutional justice that an oral hearing is essential to every appeal procedure. The essential requirement is that it should be open to the appellant in such a procedure fully to state his case. The grounds of the Applicant's appeal in this case were clearly and cogently stated in the letter written by his Solicitor to the first named Respondent on the 7th March, 1996. The Applicant's Solicitors were invited by the first named Respondent (in a letter dated 2nd April, 1996) to " elaborate on or furnish additional evidence or documentation on the grounds of appeal set out on behalf of your client in your letter of the 7th March ". The Applicant's Solicitors replied by letter dated 18th April, 1996 " the grounds of our clients Appeal are comprehensively set out in our letter of the 7th ult. ". There is no evidence before this Court to suggest that the first named Respondent did not fully consider the grounds of the Applicant's appeal before reaching his decision. This ground therefore also fails.

44. In summary it seems to me that in this case the Applicant seeks to overturn the decision of the first named Respondent and to replace it with a decision in his favour. This is not the true purpose of Judicial Review proceedings and as such is not open to him. It follows from the foregoing that the Applicant's claim fails and that the reliefs which he seek must be refused.