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Browne v. A.G. [2002] IEHC 47 (6 March 2002)

THE HIGH COURT

JUDICIAL REVIEW

2000 784JR

BETWEEN

VINCENT BROWNE

APPLICANT

AND

THE ATTORNEY GENERAL

THE MINISTER FOR THE MARINE AND NATURAL RESOURCES IRELAND AND DISTRICT JUDGE JAMES O'CONNOR

RESPONDENTS

Judgment of Mr. Justice Nicholas Kearns delivered this 6th day of March, 2002

Introduction

1. This is a case about tuna fish and dolphins and the implementation in Irish law of an EU Regulation. The albacore tuna is a migratory species which may be found off the Azores in June and which moves gradually north east over the following four to five months. This species feeds on a variety of prey, including certain fish types, squid and saury, which are also prey items for dolphins. In the North East Atlantic, the albacore tuna fishery operated by French and Spanish vessels dates back to the 19th Century. Traditionally, tuna were caught on troll-lines towed behind the fishing vessel, but following a reduction from 1,000 to 50 vessels in the French tuna fleet between 1950 and 1986, drift net fishing techniques were introduced in an attempt to relaunch the French tuna industry. This proved economically viable and, following trials, Ireland followed suit in the early 1990's. By 1993 there were some 90 Community vessels engaged in drift net fishing for tuna, of which 64 were French, 16 Irish and 10 British. Spanish vessels, which are prohibited by Spanish law from using drift nets, continue to troll for tuna with a fleet of between 600-700 vessels, most of which operate in the North East Atlantic.
2. Drift nets have been used to catch fish for many centuries but since the use of mono-filament in net manufacture during the 1960's, increasing concern was expressed over the number of non-target species being caught, notably dolphins, who, like tuna, often swim close to the surface.
3. A drift net consists of a number of sheets of common gill net which are joined together and which when deployed by "shooting" or "streaming", are maintained in a vertical position in the water in a wall-like fashion by a line of floats at the top and a line of weights at the bottom. Such nets can be of varying length and, in certain instances in the Pacific, were up to 50 kilometres in length. A drift net is defined in the Sea Fisheries (Drift Nets) Order 1998 (SI 267/1998) (The Irish Regulation) as " a wall of netting used in fishing, which is free to move according to the wind and tide". To reduce the risk of catching dolphins, some drift nets incorporate gaps or doors through which dolphins can sometimes escape.
4. Accordingly, and not merely because of any perceived threat to fish stocks but also because of concerns that by-catches of cetaceans (marine mammals) were unacceptably high, the UN called upon all members of the International Community to agree to an immediate cessation to further expansion of large scale pelagic drift net fishery activities on the high seas. It passed a number of resolutions, to which in turn the EU responded in 1992 by adopting Regulation 345 which set a maximum length of 2.5 kms for drift nets used by EU vessels. This Regulation provided for a number of derogations.
5. In April 1994 the Commission of the EU reported to the Council both on drift netting and in relation to the various derogations, finding that a proposal was necessary to provide for the cessation of all fishing activities using drift nets and the immediate application of special control measures. Majority support among the Member States for such a ban was not forthcoming until the presentation in 1998 of a UK Presidency compromise proposal which in June 1998 resulted in the adoption of Regulation 1239/98 ("The EU Regulation"). The EC Regulation altogether banned drift netting for tuna fishery in the North Atlantic and Mediterranean with effect from January 1st 2002 and provided for a cap on the number of vessels that, subject to the 2.5 km net length restriction, could still participate in the drift net tuna industry for the period from 1998 to the end of 2001.
6. Both France and Ireland voted against the adoption of the regulation, contending, in Ireland's case, that there was no scientific evidence that albacore tuna stocks were over-exploited or that drift netting resulted in biologically significant by-catches of dolphins. Tuna fishing was for Ireland of significant socio-economic importance, involving, prior to capping, some 30 boats in Counties Cork and Kerry, fishing mainly out of Dingle and Castletownbere. Part of the relief sought in these proceedings is a declaration that the EC Regulation (which had amended Council Regulation [EC] 894/97) is unlawful and invalid as being contrary to EC law. A referral under Article 234 to the European Court of Justice is sought for that purpose. However, the more immediate task with which the Court is concerned is to inquire whether the EC Regulation has been properly transposed into Irish law, given that the Applicant herein faces prosecution on charges in the Cork Circuit Court as a result of allegedly infringing the implementing measures provided for by the Irish Regulation.

The Facts

7. Vincent Browne, the Applicant, is from Castlegregory, Co Kerry and is the master of an Irish fishing boat, the MFV "Antonia", which sails out of Castletownbere. He is a member of the Irish Tuna Association and has an authorisation to fish, inter alia, for tuna.
8. On the 15th of June 2000 he departed from Dingle in Co Kerry with a view to fishing for tuna, prior to which he had obtained a permit issued by a Sea Fisheries Officer pursuant to the Irish Regulation. In his Affidavit he deposes that the vessel was carrying 2.5 kilometres of drift net and was also carrying approximately 4 kilometres of gill net, which was rigged similarly to a drift net, but which had in addition 5 sea anchors for attachment to the net, together with 2 heavy steel gill net anchors for attaching at each end of this stretch of approximately 4 kilometres of gill net and in excess of 600 fathoms of rope for attaching these heavy steel gill net anchors. He deposes that these anchors are intended to and do in fact assist in preventing the nets when set from drifting according to wind and tide and contends accordingly that the second length of net was not a drift net as defined by the Irish Regulation.
9. The vessel travelled some 400 miles from Dingle in a south westerly direction and ended up fishing in an area some 190 nautical miles outside of the 200 nautical mile exclusive fishery limit of the State. There the vessel fished for tuna between the 18th June - 23rd June, 2000. At about 4.30 p.m. on Saturday, 24th day of June 2000, the boat was boarded by a boarding party from an Irish Naval vessel the LE "Deirdre" led by Sub-Lieutenant Bernard Heffernan.
10. The Applicants log book recorded possession of the 2.5 kms of drift net and 4.5 kms of gill net which nets were then inspected by members of the Naval Service. The log of the vessel was inspected, as was the fishing gear and nets which were then in the net pound at the stern of the vessel. The Naval Officer then requested the Applicant to shoot all of the net on board into the water, for the purpose of measuring it's length. He noted that the anchors and fittings were not rigged to the second net. In cross-examination before this Court he agreed that Mr Brown had said at the time that this second net hadn't been used. He also stated, however, that this second net was exactly the same as the first net on inspection. He agreed that the 2.5 km length of net was in 12 sections and was a continuous wall with no gaps or doors. Having shot the nets, the same were measured at 2.545 kms and 4.554 kms respectively.
11. Having thus ascertained the length of net or nets, Officer Heffernan cautioned the Applicant and informed him that he was being detained for the offence of keeping on board, or using for fishing, one or more drift nets whose individual or total length was more than 2.5 km contrary to Article 11 of the Council Regulation (EC) 1239/98 amending Council Regulation (EC) 894/97. The Applicant indicated that he understood the caution and commenced hauling his gear. Later that evening, Officer Heffernan's Commanding Officer gave orders that the Applicant be directed to make best speed for Castletownbere where both vessels arrived on Monday the 26th day of June 2000. On arrival, the vessel was met by Garda Hegarty of Castletownbere and two Sea Fisheries Officers of the Department of the Marine following which Garda Hegarty detained the boat on suspicion of having committed an offence pursuant to Section 223A of the Fisheries (Consolidation) Act, 1959 as amended.
12. Following an inspection of the vessel, Garda Hegarty handed over custody of same to Sergeant O Donovan of Castletownbere, at which point the Applicant and his solicitor were informed there would be an application made to the District Court in Macroom for a detention order for 48 hours in accordance with the provisions of the Fisheries (Consolidation) Act 1959 as amended. The last named Respondent granted a detention order for 48 hours, during which time the fish was off-loaded from the "Antonia" and sold, the proceeds whereof amounting to £16,900.00 have been retained pending the outcome of the prosecution. The Applicant was subsequently arrested and charged on the 28th of June 2000 with the offences set out in Castletownbere charge sheets 27 and 28 of 2000. Preliminary examinations were waived and the Applicant was returned for trial to the Cork Circuit Criminal Court following which the vessel was released to the Applicant subsequent to the entry of bail bonds to secure the release of the boat and gear. Throughout these procedures, the Applicant's solicitors maintained an objection that there was no authority in any Irish legislation giving powers of detention to the Naval Service in respect of Irish fishing boats on the high seas.
13. The first of the two charges charges the Applicant that he did on the 24th day of June 2000 keep on board the sea fish fishing vessel "Antonia" a drift net prohibited by Article 11 of Council Regulation (EC) 894/97 of the 29th April 1997 as amended by Council Regulation (EC) 1239/98 of the 8th June 1998 and of Part 4 of the Sea Fisheries drift Net Order, 1998 (SI 267/98) contrary to Section 223A of the Fisheries (Consolidation) Act, 1959 as amended by the Fisheries (Amendment) Acts 1978,1983 and 1994. The second offence charged is that the Applicant did on the same date use for fishing one or more drift nets prohibited by the same Article, contrary to Article 3 of the Sea Fisheries (Drift Nets) Order 1998, contrary to Section 223A of the Fisheries (Consolidation) Act, 1959, amended as already stated.
14. On the 19th December 2000, Kelly J gave leave to the Applicant to apply by way of Judicial Review for the following reliefs:-

1. An Order of Prohibition directed to the first named Respondent herein prohibiting him from prosecuting the Applicant in the Cork Circuit Court on the charges proffered by him and contained in Castletownbere charge sheets No. 27 and 28 of 2000.

2. An Order of Certiorari quashing the Order made by the fourth named Respondent herein on or about the 28th June 2000 whereby he returned the Applicant for trial to the Cork Circuit Criminal Court on foot of the charges contained in Castletownbere charge sheets No. 27 and 28 of 2000.

3. An Order of Certiorari quashing the Order made by the fourth named Respondent herein on the 26th June 2000 pursuant to Section 233A of the Fisheries (Consolidation) Act 1959 (as amended by Section 12 of the Fisheries [Amendment] Act 1978 and as amended by Section 11 of Fisheries [Amendment] Act 1994) whereby he directed the continued detention by Garda Martin Hegarty of the Sea Fishing boat "Antonia" of which the applicant is the Master and the persons on board at the Port of Castletownbere for a period of 48 hours from 10.09 p.m. on the 26th June 2000.

4. A declaration that the boarding, arrest and detention of the Fishing Boat "Antonia" on or about the 24th June 2000 190 miles outside the exclusive fishery zone of the State was unlawful and unauthorised by law.

5. A declaration that bottomset nets or anchor fixed gill nets on board the Antonia do not constitute drift nets for the purposes of Council Regulation 1239/98 or the Sea Fisheries (Drift Nets) Order 1998 (SI 267 of 1998).

6. A declaration that the Sea Fishers Drift Net Order 1998 (SI 267 of 1998) is ultra vires the powers of the third named Respondent herein and contrary to the European Communities Act 1972 as amended and/or contrary to Section 5 of the Fisheries (Amendment) Act 1983.

7. A declaration that the Fisheries (Drift Nets) Order 1998 (SI267 of 1998) is ultra vires the powers of the third named Respondent herein pursuant to Section 223A of the Fisheries Consolidation Act 1959 as inserted by Section 4 of the Fisheries Amendment Act 1983 or alternatively the said section is invalid having regard to the provisions of the Constitution and in particular Article 15 thereof.

15. Other reliefs sought, including a possible referral under Article 234 of the Treaty of the European Communities referring the matter to the Court of Justice, to which I have already made reference, need not be detailed further at this point.
16. The grounds upon which relief was sought include the following:-

1 The Applicant has been arrested, detained, charged and returned for trial for a matter which is not an offence known to Irish law.

2 The activity complained of by the first named Respondent is outside the jurisdiction of the State and the entitlement of the first named Respondent to prosecute for same.

3 The offences alleged against the Applicant in Castletownbere charge sheets 27 and 28 of 2000 are outside the jurisdiction prescribed by Section 10 of the Maritime Jurisdiction Act 1959 as amended, as it is not within the territorial seas or internal waters of the State.

4 The offences alleged against the Applicant in Castletownbere charge sheets 27 and 28 of 2000 are not alleged to have been committed within the exclusive fisheries limits prescribed by the Government pursuant to Section 6 of the Maritime Jurisdiction Act 1959 and as laid down in the Maritime Jurisdiction (Exclusive Fishery Limits) Order 1976.

5 The offences alleged do not come within the scope of the Sea Fisheries (Drift Nets) Order 1998 (SI 267 of 1998) made pursuant to Section 223A of the Fisheries Consolidation Act 1959 as amended (as inserted by Section 4 of the Fisheries Amendment Act, 1983) under Chapter 2 of Part 13 of the 1959 Act which sets out the statutory provisions applicable to the exclusive fishery limits of the State. The previous statutory instruments (SI 201 of 1994 and SI 262 of 1995) proscribing any infringement of Article 9 (A)(1) of Council Regulation 3094/86 outside the exclusive fishery limits of the State in relation to an Irish fishing vessel or by a person on board an Irish sea fishing vessel have been repealed by SI 267 of 1998 and have not been re-enacted by SI 267 of 1998 in relation to any infringement of Council Regulation 1239/98 outside the exclusive fishery limits of the State.

6 The powers of Sea Fishery Protection Officers pursuant to Part XIII of the Fisheries (Consolidation) Act 1959 as amended only apply and are exercisable in relation to offences allegedly committed within the areas comprised within the territorial seas or internal waters of the State under the Maritime Jurisdiction Act, 1959 or within the exclusive fishery limits prescribed by the Maritime Jurisdiction (Exclusive Fishery Limits) Order 1976 and have not been extended or deemed to apply outside the exclusive fishery limits of the State and in particular in relation to Council Regulation 1239/98.

7 The first named Respondent and/or his solicitor were unable to inform the Applicants solicitor orally or in reply to correspondence written by the Applicants solicitor as to what power of detention they were exercising in relation to the Applicant on the High Seas and were also unable to inform the fourth named Respondent herein what power had been exercised or the existence of any particular power which would entitle the Applicant to be arrested and his ship to be boarded and detained but that they did believe that there was such a power.

8 The second named Respondent is obliged when purporting to give effect to Acts or measures adopted by the European Communities or by any of the institutions thereof to use the methods prescribed by law and in particular the methods prescribed by the Oireachtas for the proper implementation of these into domestic law (whether by means of a Regulation made pursuant to Section 3 (1) of the European Communities Act 1972 as amended or, where necessary, by the passage of legislation to be enacted by the Oireachtas in circumstances where this is required, or alternatively by the making of regulations pursuant to Section 224 B of the Fisheries (Consolidation) Act 1959 as inserted by Section 5 of the Fisheries mendment Act 1893).

9 Insofar as the second named Respondent has purported to give effect to Council Regulation (EC) 1239/98 by means of the Sea Fisheries (Drift Nets) Order 1998 (SI 267 of 1998) in purported exercise of the powers conferred to him by Section 223A of the said 1959 Act as amended, and by failing to use Section 3 (1) of the European Communities Act 1972 as amended or Section 224B of the said Fisheries (Consolidation) Act, 1959 as amended or by securing the passage of legislation by the Oireachtas, the said Sea Fisheries (Drift Nets) Order 1998 (SI 267 of 1998) is invalid and unlawful and ultra vires the powers of the second named Respondent herein.

10 Insofar as the second named Respondent made the said 1998 Order purportedly pursuant to Section 223A of the Fisheries Consolidation Act 1959 as amended and insofar as the same

(a) creates an indictable offence on the high seas

(b) defines that offence

(c) purportedly has applied to it the enforcement provisions of Chapter 2 and of Part XII of the 1959 Act, as amended and the prosecution, conviction and penalty provisions of Sections 2 to 4 of the 1978 Fisheries (Amendment) Act as amended by the Fisheries Amendment Acts 1983 and 1994.

The Minister is acting ultra vires Section 223A of the said 1959 Act as it only permits him to regulate the exclusive fishery limits of the State.

11 Alternatively if and insofar as the said regulations are ultra vires the said Section 223A, constitutes an impermissible delegation of law making power by the Oireachtas to the second named Respondent herein, contrary to Article 15 of the Constitution.

The Statement of Opposition

17. The Statement of Opposition contends that the return for trial was made within jurisdiction and denies that any steps taken prior to the making of such Order were unlawful or failed to come within the scope of the Sea Fisheries (Drift Nets) Order 1998.
18. The Statement further contends that the various Orders made by the fourth named Respondent are now spent. Any controversy as to whether the bottomset or anchor fixed gill nets on board the vessel constitute drift nets is a pure issue of fact to be determined by the Court of Trial, and it is submitted that this Court has no jurisdiction or alternatively, should refuse its discretion, to make any declaration on this point. This Statement further contends that the powers of Sea Fishery Protection Officers are not limited in application to offences committed within the territorial seas or within the exclusive fishery limits of the State.
19. Further, the powers of detention, arrest and boarding exercised by the first named Respondent derive from Section 233 of the Fisheries (Consolidation) Act 1959 as amended.
20. Paragraph 13 states as follows:-

"The second named Respondent was entitled at law to make an Order under Section 223A of the Fisheries (Consolidation) Act 1959, as amended, for the purpose inter alia, of giving effect to certain provisions of Council Regulation (EC) 894/97 of April 29th 1997, laying down certain technical measures for the conservation of fishery resources, as amended by Council Regulation (EC) No. 1239/98 of June 8th, 1998."

21. It is further denied that Orders made under Section 223A of the Fisheries (Consolidation) Act 1959 as amended are limited in scope to regulating the exclusive fishery limits of the State. It is further denied that Section 223A of the Fisheries (Consolidation) Act 1959, as amended, constitutes an impermissible delegation of law making by the Oireachtas to the second named Respondent.

The EC Regulations

22. Title VIII of Council Regulation (EC) No 2847/93 of 12th October 1993 established a control system applicable to the Common Fisheries Policy and provided as follows by Article 31:-

"1. Member States shall ensure that the appropriate measures be taken, including of administrative action or criminal proceedings in conformity with their national law, against the natural or legal persons responsible where common fisheries policy have not been respected, in particular following a monitoring or inspection carried out pursuant to this Regulation.

2. The proceedings initiated pursuant to paragraph 1 shall be capable, in accordance with the relevant provisions of National law, of effectively depriving those responsible of the economic benefit of the infringements or of producing results proportionate to the seriousness of such infringements, effectively discouraging further offences of the same kind.

3. Sanctions arising from the proceedings mentioned in paragraph 2 may include, depending on the gravity of the offence:

- Fines,

- Seizure of prohibited fishing gear in catches

- Sequestration of the vessel

- Temporary immobilisation of the vessel

- Suspension of the licence

- Withdrawal of the licence"

Given that these enforcement requirements for non-compliance exist, it is contended on behalf of the Respondents in this case that the State, in transposing the EC Regulation, was required to create an offence that was at least capable of being tried on indictment.

23. EC Council Regulation 894/97 lays down certain technical measures for the conservation of fishery resources.
24. Article 11 provides as follows:-

"1. No vessel may keep on board, or use for fishing, one or more drift nets whose individual or total length is more than 2.5 kilometres.

2. Throughout the fishing referred to in paragraph one, the net must, if it is longer than 1 kilometre remain attached to the vessel. However, within the 12 mile coastal band, a vessel may detach itself from the net, provided that it keeps it under constant observation.

3. Notwithstanding Article 1 (1) this Article shall apply in all waters, with the exception of the Baltic Sea, the Belts and the Sound under the sovereignty or jurisdiction of the Member States, and outside those waters to all fishing vessels flying the flag of a Member State or registered in a Member State."

25. The Regulation did not contain a definition of "Drift Net", although the Regulation did define "Bottom Set Gill Nets or Entangling Nets" and "Trammel Nets". Reference is made in the Regulation to the use of gill nets at Article 9, paragraph 2 (dealing with Mackerel) which, Mr McGuinness on behalf of the Applicant suggests, is indicative that all these types of net are distinguishable from each other.
26. This Regulation was amended by Council Regulation (EC) No1239/98 of the 8th of June 1998. It replaced Article 11 of 894/97 by repeating Article 11 (1) and by adding Article 11A which provided:-

"1. From 1 January 2002 no vessel may keep on board, or use for fishing, one or more drift nets intended for the capture of species listed in Annex 8.

2. From 1 January 2002, it is prohibited to land species listed in Annex 8 which have been caught in drift nets.

3. Until 31 December 2001, a vessel may keep on board, or use for fishing, one or more drift nets referred to in paragraph 1 after receiving authorisation from the competent authorities of the Flag Member State. In 1998, the maximum number of vessels which may be authorised by a Member State to keep on board, or use for fishing, one or more drift nets shall not exceed 60% of the fishing vessels which used one or more drift nets during the period 1995 to 1997."

27. Article 6 of the Regulation provided:-

"In the case of failure to comply with the obligations laid down in Articles 11 and 11A and this Article, the competent authorities shall take appropriate measures in respect of the vessels concerned, in accordance with Article 31 of Regulation (EC) No. 2847/93."

28. The Regulation further provided that the said obligations should apply in all waters falling within the sovereignty of jurisdiction of the Member States and outside those waters should apply to "all community fishing vessels.".
29. It was for the purpose of transposing, implementing and providing for enforcement to the Regulation that the Minister for the Marine and Natural Resources on the 28th July 1998 introduced the Sea Fisheries (Drift Nets) Order 1998 (SI 267/98) (The Irish Regulation).

The Irish Regulation

30. In introducing the Irish Regulation, the Minister purported to do so in exercise of powers conferred on him by Section 223A of the Fisheries (Consolidation) Act 1959 as amended, which provides:-

"(1) Chapter II of part XIII of the Principal Act is hereby amended by the substitution of the following subsections for subsection (i) of section 223A (inserted by section 9 of the Act of 1978):

"1. The Minister may, as he shall think proper, by Order prescribe and adapt either or both of the following measures, namely, measures of conservation of fish stocks and measures of rational exploitation of fisheries.

(1A) Without prejudice to the generality of subsection (1) of this section, an Order under this may -

(a) relate -

(i) generally to sea fishing or to sea fishing which is of a specified class or description,

(ii) generally to fishing other than sea fishing or to such fishing which is of such of such a class or description,

(iii) generally to fisheries other than sea fisheries or to such fisheries which are of such a class or description,

(iv) generally to fishing boats (including sea fishing boats) or to fishing boats which are of such a class or description,

(v) to boats, other than fishing boats, which are of such a class or description,

(b) for the purpose of enabling the Order to have full effect, extend any or all of -

(i) the powers conferred by this Act on a sea Fisheries Protection Officer for the purposes of this Act

(ii) the powers so conferred on an authorised person within the meaning of Part XVIII of this Act

(iii) the powers so conferred on authorised officers within the meaning of Section 301 of this Act,

(c) Include such incidental supplementary and consequential provisions as the Minister considers appropriate, and in case provisions are included in such an Order by virtue of paragraph (b) of this subsection, this Act shall be construed and have effect in accordance with the terms of the Order

2 An order under subsection (1) of Section 223A (inserted by Section 9 of the Act of 1978) of the Principal Act and which immediately before the commencement of this section had neither expired nor been revoked shall be deemed to have been made under the first of the subsections inserted in the said Section 223A by subsection (1) of this section and may be revoked or amended as if it had been so made

3 A person who contravenes or attempts to contravene an Order under this Section shall be guilty of an offence

4 The Minister may by Order revoke or amend an order under this section including an order under this subsection"

31. It is interesting to contrast this provision with Section 224 (B) of the Fisheries (Consolidation) Act 1959, which was inserted by Section 5 of the Fisheries (Amendment) Act 1983, and which was clearly envisaged as a vehicle for the transposition of EU measures into Irish law. Section 224B (1) provides:-

"Without prejudice to the generality of Section 3 (1) of the Act of 1972, the Minister may by Regulations make provision to give effect within the exclusive fishery limits of the State to any provision either of the Treaties or of any Act adopted by an institution of the European Communities which authorises any or all of the Member States of the European Communities to restrict or otherwise regulate in a manner specified in the provision, fishing in waters, or in part of waters, under its or their sovereignty or jurisdiction."

32. Because the availability of this provision is confined to regulations to be introduced to give effect or have effect within the exclusive fishery limits of the State, it clearly fell short of what the Minister required to create an indictable offence outside those limits on the high seas. Because the creation of an indictable offence was involved, the provisions of the European Communities Act 1972, usually availed of for transposition purposes, were also unavailable.
33. The purported effect of SI 267/98 is to put in place enforcement provisions for Council Regulation 1239/98. Essentially it provides that from the making of the Order no vessel may keep on board or use for fishing one or more drift nets whose individual or total length is more than 2.5 kilometres. The penalties for any breach are contained in the Fisheries (Amendment) Act 1978. It repeals earlier regulations made in 1994 and 1995 wherein an identical definition of drift net appeared and wherein extra territorial application was provided for. It does not purport to bring within it's ban any other type of net, and in particular any other net which is not free to drift or move according to wind and tide. Nor does it expressly state that when an infringement of the Order occurs, it is by reference to exclusive fishery limits, be it either inside or outside of same.
34. The effect of the Irish instrument is to give the Minister power to create an indictable offence on the High Seas without primary legislation. Whether such a substantial measure can be effected by means of Statutory Regulation is a consideration to which I will now turn.

Implementation by Statutory Instrument

35. Article 249 EC provides:-

"In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make regulations and issue directives, take decisions, make recommendations or deliver opinions.

A Regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States."

36. Article 10 EC provides that:-

"Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community tasks."

37. While Community Regulations are directly applicable, they may nonetheless require the making of detailed rules by a Member State to make them effective and this is done by some act or measure of implementation.
38. Under Article 29.4.3, introduced by the third amendment to the Constitution in 1972, it was provided that "The State (might) become a member of the European Economic Community". Article 29.4 paragraphs 3, 4, and 5, respectively authorised the State by means of successive constitutional amendments to ratify the Single European Act in 1987, the Treaty on European Union (The Maastricht Treaty) in 1992 and the Treaty of Amsterdam in 1997.
39. Article 29.4.7 provides:-

"No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities (including the European Economic Community) or prevents laws enacted, acts done or measures adopted by the European Union or the Communities or by the institutions thereof, or by bodies competent under the treaties established in the Communities, from having the force of law in the State."

40. Article 15.2.1. of the Constitution provides:-

"The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: No other legislative authority has power to make laws for the State".

41. Article 6 of the Constitution recognises the tripartite separation of legislative, executive and judicial powers.
42. Against this Community and Constitutional backdrop, one must then consider the relevant provisions of the European Communities Act 1972 which is a conduit pipe through which Community law may be rendered into domestic law.
43. Described as "An Act to make provision with respect to membership of the State of the European Communities" , it contains the following provisions:-

"2 From the first day of January 1973 the Treaties governing the European Communities and the existing and future acts adopted by the institutions of those Communities shall be binding on the State and shall be part of the domestic law thereof under the conditions laid down in those Treaties.

3(i) A Minister of State may make regulations for enabling Section 2 of this Act to have full effect

(ii) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to theMinister making the regulations to be necessary for the purposes of the regulations (including provisions repealing, amending or applying, with or without modification, other law, exclusive of this Act).

(iii) Regulations under this section shall not create an indictable offence"

44. As it is a matter of some importance in this case, I also propose to set out fully the relevant parts of Section 4 of the European Communities Act 1972 as substituted by the European Communities (Amendment) Act 1973:-

"(1) (a) Regulations under this Act shall have statutory effect

(b) If the Joint Committee on the Secondary Legislation of the European Communities recommends to the Houses of the Oireachtas that any regulations under this Act be annulled and a resolution annulling the regulations is passed by both such Houses within one year after the regulations are made, the regulations shall be annulled accordingly and shall cease to have statutory effect, but without prejudice to the validity of anything previously done thereunder."

45. This Section replaced the corresponding section of the 1972 Act which provided that regulations under that Act should have statutory effect but, unless confirmed by Act of the Oireachtas passed within six months after they are made, they should cease to have statutory effect on the expiration of that period, without prejudice however to the validity of anything previously done thereunder. The amendment thus watered down but nonetheless preserved an important element of parliamentary supervision over regulations made under the 1972 Act.
46. The essential issue therefore when Community law is being transposed is to determine the circumstances in which Ministerial Regulation, rather than primary legislation, may be resorted to for that purpose, and where it is permissible, to examine if the mode of implementation complies with the requirements of domestic law.
47. Under Irish constitutional principles, ministerial regulations cannot make new law and are permitted only to give effect to the principles and policies contained in the parent Act under which they are adopted. They may not repeal or amend legislation. They may not go beyond the four walls of the particular Act. The parameters were defined by O'Higgins CJ in Cityview Press Limited-v-An Chomhairle Oiliuna (1980) IR 381 (at p399):-

"In the view of this Court the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. On the other hand, if it be within the permitted limits - if the law is laid down in the statute and details only are filled in or completed by the designated Minister or subordinate body - there is no unauthorised delegation of legislative power."

48. In Meagher-v-The Minister for Agriculture and Food (1994) 1IR 329 it was held by the Supreme Court that Section 3 of the 1972 Act was not invalid having regard to the provisions of the Constitution. In that case, and in the later case of Maher-v-The Minister for Agriculture, Food and Rural Development (2001) 2 ILRM 481, the appropriateness of effecting transposition by Ministerial Regulation rather than primary legislation was considered in great detail.
49. In the Maher case, the Supreme Court held, inter alia as follows:-

(1) The fact that a regulation is directly applicable does not prevent the provisions of that regulation from empowering a Community institution or a Member State to take implementing measures. In the latter case the detailed rules for the exercise of that power are governed by the public law of the Member State in question; however, by virtue of the direct applicability of the measure empowering the Member State to take the national measures in question, the national Courts can ascertain whether such national measures are in accordance with the content of the Community Regulation (Eridania-v-Minister of Agriculture and Forestry (Case 230/78) (1979) ECR 2749 applied).

(2) The fact that it may be convenient or desirable to transpose a Community measure into Irish law in the form of a Regulation rather than an Act of the Oireachtas is not of itself a sufficient reason for concluding that the regulation is necessitated by the obligations of membership of the European Union or of the Communities within the meaning of Article 29.4.7 of the Constitution. Where no policy choices are left to the Member State, expedition is one of the factors which may legitimately be taken into account in deciding to opt for the making of a regulation rather than the enactment of primary legislation, but it does not justify such a decision in the case of every directive or EU Regulation.

50. In the instant case, both sides agree that the use of a statutory instrument, rather than an Act of the Oireachtas, as the vehicle for making the detailed rules was not necessitated by the obligations of membership of the European Union, so that the transposing measure in the instant case is not immune from Constitutional scrutiny. In considering whether the regulations in the Maher case infringed the exclusive law making power conferred upon the Oireachtas by Article 15.2.1. of the Constitution the Supreme Court held that the "principles and policies test" provides the basis for deciding whether a given legislative act abdicates the exclusive law making power conferred upon the Oireachtas by Article 15.2.1 of the Constitution. The Court further held that the principles and policies test is capable of being applied by the Irish Courts without any conflict with Community law, being a test designed to protect the democratic basis of government, a principle that finds expression in Community law. Thus the Court also held:-

(3) Where a provision of Community law imposes obligations on the State, leaving no room (or perhaps no significant room) for choice, the implementation of such a provision by means of Ministerial Regulation is not invalid having regard to Article 15.2.1 of the Constitution. The force of Article 15.2.1 is preserved for cases where such an obligation does not exist. The principles and policies test applies mutatis mutandis where the delegated legislation represents an exercise of power or discretion arising from Community secondary legislation. It applies with particular clarity to the case of directives in respect of which Article 249 EC leaves the choice of form and methods to the Member States. Although Community Regulations are directly applicable without the need for national implementing measures, the principles and policies test is applicable where such regulations leave open a range of choices. Each case must be decided on its own merits. The mere existence of a Community Regulation implies a Community policy. Article 253 EC obliges the Community legislature to state in such Acts "the reasons on which they are based". Member States implementing measures come inherently within the scope of such a stated policy. However, the choices left to the Member States may be of such significance in their nature or scope or so unconnected with Community policies and aims that primary legislation would be required to transpose the Community measure into Irish law and, if regulations were to be used, such would be invalid having regard to Article 15.2.1 of the Constitution.

51. On behalf of the applicant, Mr McGuinness points out that in the instant case the Minister is not exercising any power in pursuance of Section 3 of the Act of 1972. Instead, the Minister is purportedly acting in pursuance of a power granted to him by the Oireachtas under Section 223A of the Act of 1959 as amended. This, it is submitted, clearly brings it within the scope of Article 15.2.1 and the principles and policies test laid down by the Supreme Court. On any application of this test, he submits, it could not be said that the Oireachtas was intending to delegate to the Minister:-

(a) A power to implement any measure of Community law from whatever treaty source arising.

(b) A power to create an alternative but silent means of implementation thereby implicitly authorising a by-pass of the existing methods by which the Minister might have properly sought to implement any such European based obligation.

(c) A power to extend the criminal jurisdiction of the State by the creation of an indictable offence which might be committed anywhere on the high seas in the world.

(d) A power to prescribe conservation measures not limited to the exclusive fishery limits of the State.

52. He further submits that the mere fact that Ireland may have been required to introduce the ban on drift net fishing contained in the Council Regulation does not exempt Ireland from proceeding to do so in a lawful manner in accordance with the requirements of its own constitutional and statutory procedures. Thus, it is submitted, even if the substance of the measure contained in SI 267 is considered to be necessitated, it does not and cannot satisfy the Irish requirements that for such implementation to be effective in terms of the enforcement of a criminal law, there must be a clear and demonstrable assumption of jurisdiction by the State both in terms of the extension of the area within which it purports to exercise its jurisdiction and a clear criminalisation of the conduct in respect of which it wishes to exercise that jurisdiction, neither of which it is submitted are present in the instant case. Accordingly, he submits, that as the decision in Maher intended to allow for the scrutiny of a domestic implementation measure in relation to something which is not necessitated as to the mode of implementation and extends even to measures which are held to be necessitated as to their mode of implementation, it is submitted that SI 267 on any application of the principles and policies criteria, having regard to Article 15 and Section 223A, fails that test, and that the said Regulations are accordingly ultra vires the Minister. Alternatively, if Section 223A, contrary to the foregoing submission, is interpreted so as to authorise the Minister to do what he has purported to do, it is submitted that such would be a delegation of the law making power of the State contrary to Article 15.2.1 and the section itself would be unconstitutional as being in contravention of the said provision.
53. In reply Mr Charleton on behalf of the respondents submitted that Section 223A must be examined on its own terms. In particular, he submitted, that the reference to "provisions applicable to exclusive fishery limits of the State" in the heading of that part of the Act in which Section 223A is to be found should be ignored when interpreting its provisions. It was not open to the Minister in this instance to avail of Section 3 of the European Communities Act 1972, or Section 224B of the Fisheries Amendment Act, but that did not preclude him from availing of another Section of the Fisheries (Consolidation) Act 1959 whereunder an appropriate Order might be made.
54. He submitted that the particular provision of Community law imposed obligations on the State which left no room for choice so that Article 15.2.1 of the Constitution could not be said to have been infringed by the use of a Ministerial Regulation in order to implement it. He further asserted that, for the purpose of applying the principles and policies test, the Community Regulations stood in the place of an Act of the Oireachtas. As in the Maher case, the instant case involved no more than the adoption of measures for the purpose of giving effect to a Community Regulation which is directly applicable in Irish law without the necessity for enacting domestic legislation.
55. Having considered these principles and submissions, a sequential question and answer process suggests itself as the appropriate method of testing whether or not a valid transposition has taken place.
56. The first question in such a process is to inquire, given that regulations are directly applicable, whether some additional measure was necessitated by the obligations of membership of the EU.
57. As Keane CJ states in Maher-v-Minister for Agriculture, Food and Rural Development (2001) 2 ILRM 481 at p516:-

"It follows that, in the present case, the first inquiry must be as to whether the implementation of the EC Regulations by legislation, whether in primary or secondary form, was necessitated by the obligations of Membership within the meaning of Article 29.4.7 of the Constitution."

58. As in that case, it is clear that here legislation in some form was necessary. Article 31 of Title VIII of Council Regulation (EC) 2847/93 of 12 October 1993 and Article 6 of Council Regulation (EC) 1239/98 of 8 June 1998 required Member States to ensure appropriate measures were put in place for the purposes of respecting the Common Fisheries Policy.
59. The second question in such a process is to inquire whether the form of implementation adopted was necessitated as an obligation of membership. Given that Community law is 'indifferent' as to the manner of implementation (subject to Community law principles of equivalence and effectiveness), such a test may be appropriately seen as a 'practical necessity' test. Quite obviously if all transposition measures were required to be implemented by primary legislation, the State could simply not discharge its law-making obligations as a Member State. In any case of urgency, therefore, a 'practical necessity' test might demand implementation by regulation although 'expediency' in this sense does not appear to have found approval in the Maher decision, other than as a factor to be taken into account. Both sides in the instant case are agreed however that the form of measure adopted was not necessitated as an obligation of Membership.
60. Next one must inquire if the Community law to be transposed sets out the principles and policies to such a degree as to obviate the requirement for domestic primary legislation. This involves a consideration of the content and substance of the measure to enable the Court form a view as to the propriety of any attempt to carry it into effect in domestic law by regulation only. If significant policy choices or decisions are left to the Member State, then, as the decision of the Supreme Court in Maher makes clear, primary legislation is required.
61. The policy behind the said legislation, Title VIII of Council Regulation (EC) 2847/93 is to establish a control system for the Common Fisheries Policy. To this end Member States are to use either criminal proceedings or administrative action so as to deprive offenders of the economic benefits of their infringements of the policy. Such sanctions as fines, seizure of prohibited fishing gear, sequestration of the vessel and suspensions or withdrawal of a licence are envisaged under the Regulation.
62. Council Regulation (EC) 1239/98 of 8 June 1998 provided that no vessel may keep on board or use for fishing one or more drift nets of more than 2.5 km in length intended for the capture of most species of tuna and highly migratory fish. The policy is that if these obligations were not complied with that the competent authorities are to take appropriate measures in respect of the vessels concerned.
63. Turning to the Irish implementing measure, SI 267/1998 provides that no vessel is to keep on board or use for fishing one or more drift nets whose individual length is more than 2.5 km. There is no suggestion that any area of policy has been left to the Member State or that SI 267/98 purported to address any additional policy consideration or to adopt enforcement measures that went beyond anything contemplated in the EC Regulations. The clear intention of the Community law is to achieve the abolition of drift net fishing for tuna and to progressively remove certain derogations which existed during the 1990's. Mr McGuinness argues that to leave to Member States the decision or choice whether to impose administrative or criminal sanctions by way of enforcement is an important discretion and policy consideration. In reality, he submits, it was the only matter addressed in the transposition process, the EC Regulation being otherwise directly applicable. However, in my view, a choice between different enforcement measures does not represent a significant reservation of policy, given that the EC Regulations cited quite clearly require that effective sanctions be put in place. In my view the choice by the Minister of Regulation was constitutionally permissible, subject only to the requirement that it be carried into effect in a constitutional fashion.
64. The fourth question therefore relates to the mode of implementation into domestic law. Did the use of SI 267/98, as to its mode of implementation, amount to a violation of Article 15.2.1 of the Constitution or otherwise amount to an ultra vires exercise of power by the Minister?
65. In my view, it did for a variety of reasons.
66. Unlike the Maher case, Section 3 of the European Communities Act, 1972 was not availed of for the transposition. Instead, the Fisheries (Consolidation) Act 1959 was the chosen vehicle. The reasons why the Minister adopted this vehicle have already been referred to. However, an immediate difficulty at once arises insofar as the application of the "principles and policies" test is concerned. In Maher, the intervening parent Act, the European Communities Act, 1972 was identified as containing no general statements of principle or policy. From the point of this consideration, the Act is a conduit pipe, nothing more, nothing less. Accordingly, in Maher the EC Regulation could be looked at as the true 'parent Act' to ascertain if it contained the requisite statement of principles and policies sufficient to obviate the need for primary domestic legislation.
67. In this case, however, the Minister chose to 'adopt' as a parent Act the Fisheries (Consolidation) Act, 1959, and a section thereof, which is clearly not designed for transposition purposes. The Fisheries Acts 1959 - 1994 contain many principles and policies but not the principles and policies of these EC Regulations. That is, they do not purport to regulate for a ban on the use of drift nets of a certain length, nor do they aim to further the Common Fisheries Policy. The law regulating fish net sizes is not laid down in the Fisheries Acts, 1959 - 1994, with only the details being filled in or completed by the Respondent in SI 267/1998. The rules contained in SI 267/1998 do not give effect to principles and policies of the Fisheries Acts themselves, but constitute a completely new addition thereto.
68. A fundamental principle of the rule of law is the principle of legality whereby every executive or administrative act which affects legal rights, interests or legitimate expectations must be legally justified. This may be achieved by demonstrating that the measure in question meets the principles and policies test, but the Respondent in this case has not in my view shown that he had such legal authority by reference to the wording of the Fisheries Acts to make SI 267/98 and accordingly must be held to have acted ultra vires as to the mode of implementation of the EC Regulation.
69. I also accept Mr McGuinness's submission that it cannot be said that the Oireachtas were intending to delegate to the Respondent a power to implement any measure of EU law from whatever treaty source arising or to delegate a power creating an alternative but silent EU power of implementation. The Oireachtas cannot be said to have thereby implicitly authorised a by-pass of existing methods by which the Respondents might have properly sought to implement any such European based obligation.
70. It also seems to me that the clear implication to be drawn from Section 3 (3) of the European Communities Act 1972 (which provides that no regulations can be made under the Act to create an indictable offence) is that primary legislation is required where it is intended to create an indictable offence. If regulations under the "conduit pipe" for transposing European legislation cannot create an indictable offence, it seems to me virtually impossible to argue that delegated legislation made under a national statute can do so.
71. In any event the Irish regulation does not expressly prescribe that an infringement of Article 11 of the Council Regulation outside the exclusive fishery limits of the State is an offence, in contrast to an earlier Order, SI 201/1994. It does not define the area of application of the requirement to comply with Article 11, 11 (A) and 11(B) of the Council Regulation and must therefore be presumed to have been intended to prohibit only that which it was within the jurisdiction of the State to prohibit i.e. one within territorial seas comprised by Section 2 of the 1959 Act or within the exclusive fishery limits of the State as fixed by Section 6 of the Maritime Jurisdiction Act 1959. It does not purport to give effect to Article 11 (c) of the Regulations so as to amend the criminal jurisdiction of the State as described above or to extend it on a world wide basis to the high seas. I accept Mr McGuinness's submission that it is a fundamental principle of criminal law that there must be certainty as to the existence of an offence, its definition and the State's jurisdiction in relation to an alleged commission of the offence. The Court cannot presume from an ambiguous provision that criminal liability to trial, conviction and punishment has been imposed by means of interpretation only. (See King -v- A.G 1981 IR 223 and A.G. -v- Cunningham (1932) IR 28).
72. The mode of implementation adopted, it seems to me, also offends Article 15.2.1 in another undesirable manner, a manner in which it perhaps also offends Article 6 of the Constitution, where its effect is to dis-apply S.4 of the European Communities Act, 1972.
73. The European Communities Act, 1972 is an example of one of the few instances where by virtue of S.4 thereof, there is a functioning scrutiny of delegated legislation by the Dáil and Seanad. As O'Higgins CJ states in the Cityview Press case at pp 398 - 399:-

"...sometimes, as in this instance, the legislature, conscious of the danger of giving too much power in the regulating or order-making process provides that any Regulation or Order made should be subject to annulment by either House of Parliament. This retains a measure of control, if not in Parliament as such, at least in the two Houses. It is, therefore a safeguard ..."

74. The Court continued: "Nevertheless, the ultimate responsibility rests with the courts to ensure that constitutional safeguards remain, and that the exclusive authority of the National Parliament in the field of law-making is not eroded by a delegation of power neither contemplated nor permitted by the Constitution."
75. Section 4 of the European Communities Act, 1972 devolves an important supervisory and monitoring function upon the Dail and the Seanad in respect of regulations put in place under that Act whereby they may be annulled by resolution of the two Houses. In by-passing that Act, as has occurred in this case, the Minister has stripped away that element of parliamentary supervision of the measure adopted and has undoubtedly contributed to what has been sometimes described as a "democratic deficit" in the important area of transposition of Community law into domestic law. In effect the Regulation "repeals" S. 4. insofar as the implementing measure itself is concerned. As only regulations under the 1972 Act have statutory effect, a de facto repeal of a statutory provision by a regulation made under another Act must be seen as impermissible for that reason also.
76. For these reasons I conclude and hold that the purported transposition was ultra vires in that SI 267/98 infringed the exclusive law making power conferred upon the Oireachtas by Article 15.2.1 of the Constitution.

Remaining Issues

77. While Mr Charleton contended that this was a 'one issue' case (i.e. about transposition), I should nonetheless make findings on the other points canvassed on their separate merits in case the matter may be taken further. A challenge in this case was made to the powers of Sea Fishery Protection Officers. Given that in the instant case, the Sea Fishery Protection Officer detained the vessel and all persons on board suspecting there had been a contravention of the provisions of Chapter II of Part XIII of the Sea Fisheries (Consolidation) Act 1959, his power to do so necessarily depends upon the validity of SI 267/1998, which I have found to be ultra vires the power of the Minister.
78. That said, Sea Fishery Protection Officers are granted special powers under Section 233 of the Fisheries (Consolidation) Act 1959, both within the exclusive fishery limits of the State and, subject to the rules of international law, outside those limits in a variety of respects.
79. There is no question but that an Irish registered vessel is subject to the criminal jurisdiction of the Irish Courts and numerous examples have been cited to demonstrate how the legislature can pass laws having extra-territorial effect, including the Merchant Shipping Act, 1894, the Air Navigation and Transport Act, 1973 and, indeed, the Fisheries (Consolidation) Act 1959. I am therefore making no finding which would impugn the powers of Sea Fishery Protection Officers other than in respect of the particular offence in respect of which the Applicant's vessel was detained in the instant case.
80. Insofar as the various Orders of the district judge are concerned, I also accept Mr Charleton's submissions that these Orders are now spent.
81. An issue also arose as to whether bottom set or anchor fixed gill nets on board the S-V "Antonia" did or did not constitute drift nets for the purposes of SI 267/1998. Mr McGuinness submits that the Sea Fisheries (Gill Net, Tuna and certain other Species of Fishing) Order 2001 (S. I. 226/2001) introduced a new definition, a more comprehensive definition, in recognition of the "deficiencies" in the earlier regulation, when it substituted for drift nets a definition of gill nets as follows:-

"Any type of gill nets, drift nets, bottom set gill nets, trammel nets and entangling nets"

82. This may well be a most persuasive basis for suggesting there may have been deficiencies in the definition contained in SI 267/1998, but the resolution of that issue is clearly within the jurisdiction of the trial judge in any given case and Mr. Charleton submits that seeking relief by judicial review is inappropriate in respect of what is essentially an issue of fact.
83. Mr Charleton referred to Blanchfield -v- Harnett (2001) 1 ILRM 193 where, albeit in a somewhat different situation (when an issue arose as to the admissibility of evidence), O'Neill J stated (at p205):-

"Where it is alleged that evidence has been obtained illegally the question of whether or not such is the case, i.e whether an illegality has occurred is one solely for the trial judge and following upon that whether or not the evidence should be admitted is again one solely for the discretion of the trial judge, a discretion to be exercised in accordance with law. In my view the principle of regularity of judicial proceedings requires that all questions relevant to the determination of such issues rests with the trial judge. Otherwise trials would be suspended for lengthy periods while such issues were litigated in other Courts, a practice wholly condemned by the Supreme Court in the case of People (Attorney General) -v- McGlynn (1967) IR 232 where at p239 the following was said by Ó Dálaigh CJ:-

"The nature of a criminal trial by jury is that once it starts, it continues right through until discharge or verdict. It has the unity and continuity of a play. It is something unknown to the criminal law for a jury to be reassessed in the middle of trial for months on end, and it would require clear words to authorise such an unusual alteration in the course of a criminal trial by jury."

84. While 'trial context' and 'admissibility issues' are not in point in the present case, the learned judge however continued:-

"In reference to this quote, O'Flaherty J in DPP -v- Special Criminal Court (1999) 1 IR 60 said the following:-

'While this statement applies to criminal trials with a jury, it should be regarded as a precept that should, as far as practical, be followed in respect of all criminal trials subject to the jurisdiction of Courts to grant cases stated on occasion.'

Further on in this judgment O'Flaherty J added the following:

'I would endorse everything that Carney J said about the undesirability of people repairing to the High Court for a judicial review in relation to criminal trials at any stage (and certainly not during their currency)'

In my view therefore, the exclusive jurisdiction of trial judges to determine issues as to the admissibility of evidence is right in principle being consistent with the regularity of judicial proceedings, a fact which is abundantly supported by authority."

85. On the material brought before this Court, certain factual matters have not yet been determined. For example, can a gill net which is capable of being used as a bottom set or anchor-fixed net, nonetheless be utilised and be therefore regarded as a drift net and thus infringe the law? It seems to me that a ruling on such an issue can only be made once the factual material has been clearly established, and this quintessentially falls within the remit of the trial Court. It is a matter arising out of the charge or indictment, so I hold in favour of Mr. Charleton on this point.
amf(VincentBrowneVAttorneyGeneral)Kearns