Court of Appeal quashed and reimposed sentence for fishing vessel master violating EU equipment regulations.

THE COURT OF APPEAL

Record No: 214/2015 Birmingham P. Edwards J. Kennedy J.

THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT V

KLASS DIRK MEIJVOGEL APPELLANT

JUDGMENT of the Court delivered by Mr Justice Edwards on the 26th of April 2024.

Introduction

1. This is an appeal against severity of sentence, and this judgment deals with the resentencing of the appellant in circumstances where we have previously identified an error of principle by the sentencing court at first instance and have quashed the sentence imposed at first instance.

Background to the Matter

2. The background to this matter is fully set out in two previous judgements of this Court, viz., the judgment of Birmingham P delivered on the 11th of October 2018 on behalf of the Court rejecting the appellant’s appeal against his conviction – see The People (DPP) v Meijvogel [2018] IECA 317; and the interim judgment of this Court, delivered by Edwards J., on 25th of July 2023 in respect of his appeal against the severity of his sentencing - see The People (DPP) v Meijvogel [2023] IECA 214, following two references by this Court to the Court of Justice of the European Union (“CJEU”). See in that regard the judgment of the CJEU (Sixth chamber) in KM (Sanctions imposed on the master of a vessel), Case C-77/20, dated the 11th of February 2021 (“KM No 1”) and the reasoned order of the CJEU (Eighth Chamber) in KM v Director of Public Prosecutions, Case C-493/21, dated the 1st of March 2022 (“KM No 2”). This judgment is to be read in conjunction with the two previous judgments of this court, and both the judgment and reasoned order of the CJEU, just referenced.

3. The appellant is the master of a sea fishing vessel who was convicted by a jury at Cork Circuit Criminal Court on the 16th of June 2015 of the offence of carrying on board a sea fishing vessel within the exclusive fishery limits of the state equipment prohibited by Article 32(1) of Council Regulation (EC) No 850/98 in contravention of Statutory Instrument number 197 of 2013 (SI 197/13), contrary to section 14 of the Sea Fisheries Maritime Jurisdiction Act 2006 (“the Act of 2006”).

4. The offending conduct in respect of which the appellant faced sentencing was particularised on the indictment as follows:

“Klass Dirk Meijvogel on the 11th of February 2015 was the master of the UK registered fishing vessel ‘Wiron 5’ having registration number PH – 1100, when the said vessel then carried on board equipment capable of grading by size, Herring, Mackerel or Horse Mackerel automatically, and when such equipment was not installed or located on the said fishing vessel in such a way as to ensure immediate freezing or to prevent the return of marine organisms to the sea”.

5. The appellant was sentenced on the 27th of July 2015 to a fine of €500, together with confiscation of his catch to the value of €344,960, and the fishing gear on board his vessel (both prohibited and legal) to the value of €55,000. The confiscation of the appellant’s catch and gear was ordered in circumstances where it was believed by all concerned (i.e., both prosecution and defence lawyers) to arise as a statutory consequence of the appellant’s conviction leading to the sentencing court being informed that it had no discretion in regard to the extent of any order for the confiscation of catch and gear. The appellant has appealed against the severity of the sentence imposed upon him and the focus of the appeal has been on the confiscation order, with the appellant contending that it was a disproportionate penalty in all the circumstances of the case, was unlawful under European Union (“EU”) law on that account and ought not have been imposed.

6. In this Court’s judgment of the 25th of July 2023 we found that the appellant had demonstrated an error of principle on the part of the sentencing court at first instance.

We concluded that the sentencing judge at first instance had incorrectly approached sentencing on the basis that he had absolutely no discretion with respect to whether or not to impose a mandatory forfeiture of all of the appellant’s catch and fishing gear in sentencing him for the offence of which he had been convicted at trial. We observed:

“It is now clear, however, that he was obliged by virtue of Article 89 of the 2009 Control Regulation, a directly effective provision of EU law, to be read in the light of Article 49(3) of the Charter, to assess whether, in relation to the infringement committed, including its seriousness, the mandatory forfeiture of all catch and all fishing gear found on board the vessel concerned was proportionate to the attainment of the objective legitimately pursued by the prohibition laid down in Article 32(1) of Council Regulation (EC) No 850/98, relating to grading equipment, and to examine, if necessary, the need to adjust, modulate or mitigate the extent of the forfeiture order in respect of the catch and the fishing gear”.

7. We went on to say that the question that then arose for consideration was whether the error of principle that we had identified had led, or may have led to, the imposition of an incorrect sentence, and if so, whether it was appropriate that we should quash the sentence imposed by the court below.

8. While noting that the CJEU had not found that s. 28(5)(b) of the Act of 2006 was necessarily incompatible with Article 89 of Council Regulation (EC) No 1224/2009, of the 20th of November 2009, establishing a Community control system for ensuring compliance with the rules of the common fisheries policy (“the 2009 Control Regulation”), the CJEU had held that a national court concerned now with that issue must seek to verify, using the helpful criteria specified by the CJEU in KM No 1 and KM No 2, whether the measures which it is being asked to apply are effective, proportionate and dissuasive.

9. We had invited submissions from the parties on that issue and were satisfied that it was at least arguable that s. 28(5)(b) of the Act of 2006 goes beyond what was necessary such that it was disproportionate to the legitimate aims being pursued by relevant EU legislation.

Without deciding on the proportionality issue at that point, we indicated that we were sufficiently concerned about it to be able to say that the legal error into which the sentencing judge was inadvertently led was by no means therefore an inconsequential one. That being so, and having regard to a real possibility that a disproportionate sentence may have been imposed upon, and a consequential injustice done to, the appellant, we found it appropriate to quash the sentence imposed by the court below. In order to do so we did not find it necessary to make an order disapplying s. 28(5)(b) of the Act of 2006, and we expressed the view that in the absence of an actual finding of its incompatibility with Article 89 of the 2009 Control Regulation and Article 49(3) of the Charter it would be inappropriate to make a disapplication order at that point.

10. Having quashed the sentence imposed by the sentencing court at first instance, it was then incumbent on this Court to re-sentence the appellant. We recognised that in doing so, we were required to impose a sanction that is effective, proportionate and dissuasive.

11. The choice of sanctions has been left by the EU legislation to the discretion of the Member States. The provision in Irish law which provides for possible sanctions is s. 28 of the Act of 2006. It provides both for a fine of up to €35,000 in the present case and, pursuant to subsection 5(b) thereof, for the mandatory forfeiture of all or any catches or fishing gear found on the boat to which the offence relates. It must be applied by us in re-sentencing unless, having carried out the verifications and the proportionality assessment commended as being necessary by the CJEU in KM No 1 and KM No 2, we conclude that in order to be compliant with Article 89 of the 2009 Control Regulation and Article 49(3) of the Charter there is a need to adjust, modulate or mitigate the extent of the proposed s.

28(5)(b) forfeiture order in respect of the catch and the fishing gear. In order to effect any such adjustment, modulation or mitigation it would be necessary at that point to disapply s. 28(5)(b) of the Act of 2006 to the extent that it requires mandatory forfeiture of all or any catches or fishing gear found on the boat to which the offence relates, and for the re-sentencing court to limit the extent of any proposed forfeiture of catch and fishing gear to what it considered was necessary to provide for a sanction that does not go beyond what is necessary in order to attain objectives legitimately pursued by the relevant legislation, but which at the same time is effective, proportionate and dissuasive. We acknowledged in our judgment of the 25th of July 2023 that in re-sentencing the appellant we would further be required to bear in mind the nature of the infringement, including its seriousness, and possible impacts on the appellant as regards his legitimate right to exercise his profession and to earn a livelihood.

12. In our judgment of the 25th of July 2023 we expressed the view that in the interests of justice the parties should be permitted in the context of any re-sentencing hearing to adduce such further evidence which they considered might be relevant to the issue of the proportionality of any forfeiture of catch and fishing gear, or that the Court might need more generally for the purposes of arriving at a just and proportionate overall sentence.

13. Without intending to be prescriptive, we opined that such evidence could encompass from the appellant’s side (i) the overall value of all and any fishing gear found on the boat to which the offence relates; (ii) the value of prohibited or non-compliant fishing gear found on the boat to which the offence relates; (iii) evidence concerning the appellant’s employment and financial situation; (iv) evidence concerning potential impacts of any proposed forfeiture on his right to exercise his profession and right to earn a livelihood;

(v) mitigating evidence, if any, bearing on the individual culpability of the appellant in committing the said offence, and; (vi) evidence concerning any other relevant personal circumstances of the appellant.

14. We also mentioned in passing that in para. 55 of KM No 1, the CJEU cautioned that the requirement that sanctions introduced by the member states must be proportionate does not mean that, in applying Article 90(1) of the 2009 Control Regulation, those authorities must take account of the specific individual circumstances of each case or that they necessarily have to take account of intention or recidivism. We would observe, however, that the appellant has argued that the present case concerns the application of Article 89 and not Article 90. That having been said, the respondent maintains that Article 90 may also be engaged having regard to the terms of Article 90(1)(c) of the 2009 Control Regulation and in circumstances where the evidence in the court below was that there was a failure to land species subject to a quota by virtue of the grading equipment setup on the Wiron 5. We said then that it will be a matter for this Court in the context of its resentencing to engage with and resolve that issue.

15. From the respondent’s side we suggested that there might perhaps be further evidence as to the prevalence of grading equipment infringements, the extent of the economic impact of such infringements, the implications for the Common Fisheries Policy (or “CFP”) in terms of the shared efforts of member states to reduce overfishing and ensuring the longterm environmental sustainability of fishing activities of a failure to deter and adequately control grading equipment infringements, and the likely undue economic benefit derived, or that might have been derived, from the particular infringement detected in this case.

16. The Court having issued its interim judgment on the 25th of July 2023 finding an error of principle in the sentencing at first instance, and quashing the sentence imposed at first instance in consequence thereof, adjourned the matter to a further hearing date on the 16th of January 2024 in order to hear such further evidence as the parties might wish to adduce, and for the purpose of re-sentencing the appellant thereafter.

The Further Hearing on the 16th of January 2024

17. Although considerable notice was given of the hearing on the 16th of January 2024, somewhat unsatisfactorily the Court was apprised at a case management listing on the Friday preceding the hearing that the appellant was at sea and engaged in fishing, and wished to participate by video link, alternatively phone link, from his vessel, internet signal / cellular phone signal permitting. The Court was advised that his plan was to position his vessel sufficiently close to land to hopefully acquire the necessary signal to allow him to participate.

18. Counsel for the respondent queried whether in fact there was statutory power for the Court to receive the appellant’s evidence by video link, having regard to the terms of s.13 of the Criminal Evidence Act 1992 and s. 25 of the Civil and Criminal Law (Miscellaneous Provisions) Act 2020. The issue of whether or not the appellant would be permitted to give evidence by video link was not resolved at the case management hearing and was adjourned to the hearing. Ultimately, at the hearing on the 16th of January 2024, counsel for the appellant indicated to the Court his acceptance that under the existing statutory regime it was not open to his client to give evidence by video link, although it was still hoped that he might do so by mobile phone.

19. On the day before the substantive hearing, i.e., the 15th of January 2024, the appellant had sworn a short affidavit remotely by video call, and his counsel sought leave to file this in court. Although evidence by affidavit was not usually permitted at sentencing hearings, the Court agreed to receive it de bene esse in the unusual circumstances of the case.

The evidence on affidavit of the appellant

20. In his said affidavit the appellant, with an address in the Netherlands, stated that he was the master of the fishing vessel “Wiron 5” on the 15th of February 2015. He stated that he is married since 2002 and lives with his wife and four children (one boy aged 19 years and three girls aged 17, 14 and 11 years respectively). He stated that they all currently live at home and that he is a homeowner with a mortgage remaining of approximately €250,000. In support of these averments he exhibited a statement of means dated the 8th of January 2024 (but with no accompanying vouching documentation) which shows him as being the owner of an identified property at a specified address (presumably the family home) and having a monthly income of €5,300.00 and monthly expenditure of €4,538.77.

21. Referring to the incident the subject matter of these proceedings, the appellant avers at paras. 7 to 9, inclusive, of his affidavit that:

“7. My catch records and official logbook from the trip were completed correctly and production records showed the retained code 900. Cartons of frozen fish marked beginning with Code 900 relate to, small and broken fish, low value, quota fish species, retained on board throughout the voyage in accordance with fishing rules.

8. While I was an employee of the owner, I, along with my crew also received a proportion of the value of the catch from each fishing trip.

9. After the detention, the owner of the vessel made it clear that we were going to have to recertify the vessel’s grading equipment and freezing installation to avoid risk of future legal prosecutions. This process was time-consuming and resulted in the vessel being inactive for several months. After my conviction the ownership structure, which was a partnership, failed to operate smoothly and broke down. I left the employment of the owners in 2017 seeking more regular fishing opportunities”.

22. The appellant goes on to aver that if the existing confiscation orders of the court below, amounting to €400,460, were left unaltered he would not be in a position to discharge this money on foot of any proceedings to recover it.

The evidence of Mr. Andrew Pillar

23. In addition, oral evidence was called on behalf of the appellant from a Mr. Andrew Charles Pillar. Mr. Pillar had previously been a defence witness at the trial of the appellant at Cork Circuit Criminal Court. Mr. Pillar testified that he was the fleet manager for the operating loading company concerned with the Wiron 5. His responsibilities included overseeing the operation of the vessel and landing of the catch and statutory reporting of the catch in accordance with the relevant requirements and the flag state.

24. The witness gave evidence that the vessel was owned by Interfish Werrons Ltd. He described how the owner of the vessel had come to acquire it, stating that it was purchased in 2014 as a replacement vessel for a previous vessel and that it was effectively a purchasing process and a due diligence undertaking associated with the flagging process. Elaborating on the latter he referred to the official certification of the vessel using at least two authorities in the UK, those being the Maritime and Coastguard Agency insofar as safety matters were concerned and the Maritime Management Organisation (“MMO”) insofar as the licensing of the vessel for sea fishing was concerned.

He stated that, from the owners’ perspective, when the vessel was sent off to fish in February 2015 it was legal and compliant and held the relevant documents to operate in the waters where they were instructed to fish.

25. Mr. Pillar went on to say that in arriving at that view the owners had relied on documents that had been prepared by Lloyds Register, who were experienced global vessel surveyors able to provide third-party certification to demonstrate the size, power but also the configuration of vessels.

26. The witness confirmed that immediately upon the vessel’s detention he had flown to Ireland and had travelled to Cobh, that he had been present throughout the course of the investigations in Cobh, and that he had subsequently given evidence for the defence at the appellant’s trial before the Circuit Criminal Court. He stated that after the vessel was released from detention Cobh it had sailed to Plymouth (the witness did not specify the date of arrival but the court is aware from other evidence in the case that it arrived on the 11th of February 2015).

27. Mr. Pillar stated that on its arrival in Plymouth arrangements were made, as per usual, to discharge its frozen cargo, all of which was in the hold, to cold stores within their business. He confirmed that he was present for the discharge. He stated that it was normal practice when discharging vessels that there was an inspection, and that notes were made and a declaration was made concerning the weight of fish and the species of fish being discharged. In this instance, such an inspection was carried out by the MMO. In addition, at the witness’s request, further inspections were carried out by the owner’s cold store and intake team (later identified by the witness as personnel belonging to Interfish Ltd, a sister company or associated company of that which owned the vessel) to verify the size and species of fish, and specifically the identification of cartons marked with a

900 code, relevant to upper portion of the catch retained on board, being broken and undersized fish. A representative of the MMO was invited to, and did, witness that operation, and the MMO subsequently issued a report concerning what they observed, which was exhibited.

28. The report, which concerned inspections carried out on the 16th and 17th of February 2015, records that a number of code 900 cartons were sampled, and the presence of three species was noted, which were subject to quota and/or minimum conservation size, namely mackerel, horse mackerel and hake; and also fish designated not fit for human consumption being discarded fish (non-target species), small fish, and broken or damaged fish. Fish not fit for human consumption were still subject to quota, notwithstanding that they were of very low market value. The witness stated that the report recorded that “there were a number of instances of those code 900 fish being accurately marked up in the cartons, consistent with the skipper’s report”.

29. The witness stated that if the vessel had been high grading, then there would be no low value, broken or undersized quota fish. However, that was not the case. At a later point in his evidence, and under cross-examination, the witness was asked to account for the fact that there had been evidence given at trial some such fish had been observed by Leading Hand Cotter that there were fish in the sump at the back of the boat including small fish and broken fish. Witness accepted that such evidence had been given but said that with reference to the landing obligation there was a de minimis allowance. He said there will always be small quantities of such fish to be witnessed in the process. Pressed on the issue by counsel for the respondent, the witness recalled that Mr. Cotter’s evidence had been to the effect that he had observed some 40 fish and he expressed the belief that, in the context of the production that was ongoing and that Leading Hand Cotter had witnessed, that was consistent with the presence of a de minimis quantity of such fish.

30. In further cross-examination Mr. Pillar was confronted with admissions said to have been made by the appellant in response to questions put to him by a member of the naval boarding party, to the effect that the appellant accepted that the impugned equipment had been used for discharging catch to the sea but was maintaining that it was not being so used at the time of the Naval Service’s boarding of his vessel. Responding to counsel, the witness said that he had no recollection of that evidence being given. It is clear, however, from the transcript which this court has that that evidence was in fact given.

31. The witness further testified concerning the impact of the vessel’s detention on the employment of the appellant. He stated that the appellant had left the owners employment two years after the incident. He had remained in the owners’ employment until around the middle of 2017. In the immediate aftermath of the vessel’s detention there has been a high degree of instability with the vessel no longer operational until around June of the same year. The principal reason for that was that work had to be undertaken so that the owners could be assured of the satisfactory certification, involving further engagement with Lloyds and taking advice from other agencies in the UK including the MMO and the Maritime Management Coastguard Agency in order to satisfy themselves that the vessels would be recertified and would be compliant with regulatory requirements. That process had taken time because of the technical nature of force involved and the upshot of that was that the earnings of the appellant were interrupted for much of 2015. He said that fishing was then fairly unstable in 2016 and that thereafter Mr. Meijvogel found other employment which provided more stability for him and his family.

32. The witness confirmed that the remuneration structure for fishing crew was as follows. A percentage, which he believed to be 26.5%, of the value of the catch (after expenses which would include the cost of cartons, freezing, packaging, pallets and so on) would be distributed amongst the crew, proportionate to their responsibilities. In the case of the skipper, this would be in addition to his fixed salary. The witness was prepared to accept the suggestion that typically the skipper got twice what ordinary crewmembers got.

33. It was put to the witness that the appellant’s current earnings were not affected by the incident subject matter of these proceedings. He was still employed as a fishing vessel master, but by a different company to that which had owned the vessel at the time of his detention.

34. It was put to the witness that the turnover of all of the companies in the group of companies of which the company owning the Wiron 5 was one was in the order of hundreds of millions of pounds. He was prepared to accept that it was in the order of tens of millions of pounds.

35. Under re-examination by counsel for the appellant, the witness stated that it was not uncommon for vessels to perhaps fish once a day or once every other day, but that when they were not fishing for grading and freezing operations to go on over 24 hours. There was a continuous freezing cycle every four hours during a 24-hour period, although grading machines would not, he estimated, the running for more than six hours a day due to hoppers and freezers being filled and requiring to be emptied.

The affidavit and oral evidence of Mr. Sean Daly

36. Oral evidence was also received from a Mr. Sean Daly, who was called by the respondent.

Mr. Daly was an executive manager and operations at the Sea Fisheries Protection Authority (“SFPA”) in Clonakilty. He had previously sworn an affidavit which he verified in the witness box and, by agreement, this was deemed to be his evidence-in-chief, and he was then tendered for cross examination by counsel for the appellant, Mr Sweetman B.L.

37. In his affidavit which was sworn on the 12th of October 2023 Mr. Daly referred to the background to the matter and to the evidence that had been received at the trial before the Circuit Criminal Court concerning what had been found after the Wiron 5 has been boarded by a Naval Service party. He stated:

“4. The boarding party went to the wheel-house. where they spoke to the master of the vessel. the Appellant, and he gave them access 10 [he ship’s documentation which was in order.

5. It was established that there were 292 tonnes Of fish On board. principally mackerel and horse mackerel, along with a small quantity Of hake, This "factory trawler" had the capability to process 350.000 fish a day (which might perhaps weigh 40 or 50 tonnes). Initial inspection revealed that there was '"illegal" equipment on the vessel which was capable Of automatically grading by size herring, mackerel or horse mackerel.

6. The entire grading system was then examined. and it ran the full length Of ship, commencing at the stern and leading up to the bow. The catch would be initially taken on board at the stern and at that location, the fish first passed through this "automatic grading" machine. As the fish passed Over the grader, they were caused to full through different sized holes onto four separate conveyor belts which had the effect or grading the catch into four different sizes of fish. These belts could move the fish further towards the bow. at which point, there was a "manual grading" system where crewmen could be processed in that they would be manually sorted by species into boxes of a certain weight. Following the manual grading section, there were

13 freezer units where the retained catch could be frozen before the boxes of frozen fish were transferred by conveyor belt to the holds below where they are stored at minus 25C.

7. On the Wiron 5, running in the opposite direction (that is from bow to stern)

along the entire length of the ship, both alongside the manual grading system and underneath the automatic grading system was a stainless-steel chute. This chute was filled with water which flowed from the bow towards the stern and discharged into a "pump sump" at the stern. At this location there was a vortex pump and when the water from the chute caused the water levels to rise to a certain level, the water (and as it transpired the unwanted fish which had been caught) would be automatically disposed of back into the ocean.

8. Further examination of this automatic grading equipment revealed that there was a lever which if engaged was capable of diverting the belt carrying the smallest Of fish away from the manual grading and dropping them back through the chute to a sump in the stern. The finding was of significance as it meant that the automatic grading equipment had the potential to be used for "high grading", This is a practise whereby smaller and less valuable fish are discarded at sea and only the larger more profitable fish are retained and landed for "quota" purposes. Any small fish, if so, diverted into the chute would never reach the manual grading section or indeed the freezer and would never be landed.

9. When the boarding took place all production had been stopped and neither automatic nor manual grading was taking place. Once the boarding party discovered the automatic grading equipment at the stern and the chute which ran the length of the ship, they examined the pump sump at stern and found that it was capable of discharging into the ocean, Having examined all of this equipment, the Naval officer suspected that the vessel was involved in ‘high grading’. He gave the appellant the appropriate legal caution and the Appellant admitted that he had automatic grading equipment on board and that it was being used, However, the Appellant told the boarding party that while he was using this automatic grading system to grade the fish. he was not using it to discharge any part of the catch into the chute.

10. There was further evidence that the Sub Lieutenant then requested the Appellant to restart the production of the catch. He was initially told that this would lake 2-3 hours hut in fact it took 40 minutes. When the production restarted at approximately 5pm. both the Sub-Lieutenant and the artificer observed small horse mackerel that were broken or damaged coming back through the chute into the sump at the stern. At the time, the ship was processing mackerel, therefore these horse mackerel. it ought to be inferred had come from a previous batch, processed when the navy were not on board. These observations were not consistent with young fish being discharged immediately from the ship for conservation purposes. These observations indicated that the ship was disposing of unwanted low value fish into the ocean and was evidently not complying with the relevant technical measure”.

38. Later in his affidavit the witness referenced Article 32 of Council Regulation (EC) No 850/98 Of 30 March 1998 for the conservation of fishery resources through technical measures for the protection of juveniles, of marine organisms and prohibiting the use of automatic grading equipment in respect of specified pelagic fish species (save where the exemptions within Article 32 apply), which prohibit the location and installation of automatic grading equipment that allows for the return of catch to the sea. He averred that this prohibition on automatic grading equipment so set up, aligns with a core purpose of Council Regulation (EC) No 850/98 as set out in the recitals to that Regulation, in particular recital 6 that “the practice of returning marine organisms to the sea should be reduced as much as possible”. He contended that this principle has been maintained as a central tenet of the Common Fisheries Policy and, following the repeal of that Council Regulation, the prohibition of the installation and location of automatic grading equipment was included in the relevant Control Regulation (i.e., Regulation (EC) 1224/2009), in Article 54c. He sought to bring to the attention of the Court that in this context, Article 2(5)(a) of the Common Fisheries Policy Regulation, (i.e., Regulation (EU) 1380/2013)

outlines that a particular objective of the Common Fisheries Policy is to:

“gradually eliminate discards, on a case-by-case basis, taking into account the best available scientific advice, by avoiding and reducing, as far as possible, unwanted catches, and by gradually ensuring that catches are landed”.

39. The witness maintained that, on his understanding in his capacity as executive manager in charge of operations in the SFPA, the intent of the EU legislative bodies was evident, that measures introduced to eliminate discards are fulfilling a core principle of the Common Fisheries Policy.

40. The witness then addressed the value of the catch and gear. The estimated value of catch was €440,834 and the value of the fishing gear was estimated at €195,000. He stated that as the vessel was registered in a third country, the sale proceeds from landings by this vessel were not available to determine the wider economic activity of the vessel owner either currently or previously.

41. The witness estimated the market valuation of the grading equipment found on board a bit vessel to be in the region of €70,000.

42. The witness further confirmed that at a hearing in the District Court at which the appellant was charged, a financial bond in the sum of €350,000 was entered into by the appellant, on foot of which the prosecution had been satisfied to release the trawler and its catch back to the accused. On the witness’s understanding, the trawler had proceeded to Plymouth in the UK where it unloaded its cargo.

43. Finally, Mr. Daly stated that in relation to the prevalence of grading equipment infringements the SFPA had obtained information from the European Fisheries Control Agency (“EFCA”) to the effect that in the period from 2013 to 2023 a total of six grading equipment infringements had been detected through joint deployment programme is coordinated by the EFCA.

44. Mr. Daly was then cross-examined before the Court of Appeal on his affidavit. He confirmed that he was not involved in the actual investigation as he was not with the SFPA at the time. He agreed with the appellant’s counsel that the prosecution had not been based on actual high grading, but rather that the vessel was equipped with equipment which facilitated the discarding of unwanted fish that were poor, broken and damaged via a chute to a sump which was then discharged to the sea. He agreed that there was an obligation on a freezer trawler operator to effectively separate out the undersized and broken fish and freeze them separately, and that if that was not done it was a breach of the regulations.

45. It was put to him that in circumstances where blocks of frozen undersized and broken fish were found on board, that was evidence that at some stage on the trip the vessel was complying with its obligations, and he accepted that. He accepted that the SFPA has never requested of the MMO’s report into the unloading of the catch that was discharged in Plymouth.

46. The witness said he was not aware if a complaint was ever made to the competent authority of the flag state under the Illegal, Unreported and Unregulated Fishing (“IUU”)

Regulation (Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing, as implemented by Commission Regulation (EC) No 1010/2009) that a serious infringement has been committed by the appellant and/or his vessel.

47. He was asked what percentage of fish will be returned to the sea if the vessel was engaged in high grading, and he stated that he was unable to provide an answer to that.

The affidavit of Mr. Andrew Campbell

48. The Court was also provided on behalf of the prosecution with an affidavit (which was not objected to) of a Mr. Andrew Campbell, who was Team Leader (Pelagic Fisheries), of the Fisheries Ecosystems Advisory Services of the Marine Institute. Mr. Campbell’s evidence was adduced to address the implications, by a failure to deter and adequately control grading equipment infringements, for the common fisheries policy in terms of the shared efforts of member states to reduce overfishing and ensuring the long-term environmental sustainability of fishing activities and, the extent of the economic impact of illegal or illegal use of grading equipment infringements. He stated his qualifications and expertise which were not in issue. There was no dispute as to his expertise.

49. Mr. Campbell deposed to the following:

“3. […] High grading of catch is the deliberate discarding whilst at sea of a portion of the total catch of a species. Usually, it is on the basis of size as smaller individuals are typically less valuable than larger specimens. High grading takes place once the catch is aboard the vessel and can be carried out manually, by the use Of grading equipment or a combination Of these. If the available quota for the species in question is restrictive and there are price differentials between smaller and larger specimens, then the incentive for high grading may be increased (Batsleer et al 2015).

4. High grading results in fish being deliberately discarded from the vessel. There are many factors that influence the survivability of fish that are returned to the sea after being hauled aboard a vessel including the characteristics Of the fishing method and gear, the depth at which the fish were captured, the trawling time, total catch size, time on deck prior to discarding, handling procedures and the biological characteristics of the species. In general, pelagic species that are caught by trawl and returned to the sea after being hauled are either dead prior to being discarded or have a low chance of survival. The fish are subject to significant stress and crowding whilst in the trawl and in particular during the hauling operation (Gilman et al 2013).

5. Pelagic fisheries in European waters are primarily managed at a stock level via the setting of an annual quota that determines the total removals (by weight) from the stock. In combination with additional, optional management measures such as fishing gear restrictions (e.g. mesh size), defined fishing seasons and area based measures, quotas are set by the relevant management body for each stock. In setting quotas, managers are informed by scientific advice which, for pelagic species such as herring, horse mackerel and mackerel is provided by the International Council for the Exploration of the Seas (ICES) and takes the form of a recommended limit on total catch for the upcoming year.

6. The process of providing scientific advice on an appropriate level of catch involves an assessment of the current status of the stock and is usually carried out annually.

The stock assessment process yields estimates of both the size of the stock and the level of mortality due to removals by fishing. These data are compared to a suite of stock specific reference points in order to derive a catch advice consistent with the defined management objectives for the stock. Under the CFP, the objective is to manage fisheries in a sustainable manner whilst maximising yields.

7. Stock assessments adopt an analytical, data-driven approach and, although the particular methodology used is dependent on individual stock characteristics and the quantity and quality of data available, the fundamental information for assessment is the history of catches from the stock, results from scientific surveys (often specifically designed to support the stock assessment) and the underlying species biology.

8. The total population of a stock consists of a number of cohorts. Each cohort is comprised all fish born in a particular year and the number of cohorts in a stock depends on species longevity. Stock assessments commonly adopt a cohort tracking approach, monitoring the development of individual cohorts, commonly referred to as adopting an age-based approach. In order to support this assessment methodology, data input to the assessment from fisheries and scientific surveys is required at the cohort level. Assigning a cohort (age) to a fish involves either a direct measurement of age via otolith analysis or, more commonly, inferring the age from the length of the fish using an established relationship between length and age.

9. As it is usually impractical to directly observe the catch from all fishing trips, scientific sampling programs are designed to provide estimates of the size and/or age profile of the catch suitable for use in the stock assessment. For practical reasons, sampling is generally carried out when vessels return to port and is therefore restricted to the portion of the catch retained by the vessel. In the event that catch had been subject to high grading, information on the size composition Of the discarded portion of the catch will not be available to the sampling program, leading to biased estimates of the catch composition with smaller sizes (younger ages) under-represented. Significant interannual variability in cohort size is common such that the proportion of smaller, less valuable fish in the population and consequently the incidence and level of high-grading may vary considerably from year to year. Moreover, in the event that the weight of the discarded catch is not accounted for in fishers' logbooks, the total weight of discarded catch (and therefore total catch) will also be an unknown underestimate. Inaccuracies with regard to both the size and composition of the total catch has implications for the stock assessment and therefore the provision of management advice.

10. Several studies have indicated that the quality of stock assessment is directly linked to the quality of the catch statistics and negatively affected by illegal or misreported landings as well as by discarding of under-sized or over-quota fish (Rijnsdorp et al 2007, Punt et al 2006, cook 2019, van Beveren et al 2017).

11 . The practice of high grading contributes to the proportion of the catch for which information is not available to the stock assessment and, depending on the scale and pattern, can have serious longer term consequences for the sustainable management of fisheries”.

Submissions

50. Mr. Sweetman B.L., representing the appellant, made submissions addressed to two principal issues, being, firstly, the proportionality of the penalty to the nature of the infringement; and, secondly, the impact on the ability of the appellant to exercise his profession and earn a livelihood.

51. As to the first of those issues, it was argued by counsel that it is necessary for this Court to assess the gravity of the infringement which is to be punished, taking into account the nature of the damage caused, its value, economic situation of the offender and the extent of the infringement on his reputation. He submitted that the breach had been somewhat technical and that it should not be regarded by this Court as having been a serious infringement coming within the scope of Article 90 of the Control Regulation. He submitted that it was, in the circumstances of the case, instead to be regarded as a somewhat lesser infringement coming within the scope of Article 89 of the Control Regulation.

52. It was submitted that there was no causal link between the delinquent behaviour and any monetary or economic benefit enuring to his client or the vessel owner. Emphasis was laid on the fact that the prosecution case had not alleged actual high grading, rather equipment set up contrary to regulations and a failure to engage in immediate freezing of all catch.

53. Confronted by a member of the bench with the proposition that the mere fact that little actual harm was done was not per se an indication that the infringement was necessarily minor or properly to be characterised as a technical one, and that it was the potential for harm to be caused that was important, counsel for the appellant emphasised that the sentencing judge at first instance had characterised the breach as being a technical one.

Counsel accepted that the potential for harm was a factor that the Court was entitled to take into account but submitted that that still did not obviate the need, ex Article 89.2 or

90 of the Control Regulation, or Article 3.2 of the IIU Regulation, to consider “the causality between the particular infringement and the monetary value of the damage being done”. He said that that was really the thrust of his submission on proportionality.

He accepted that there were policy issues to be considered, and the legal structure to be considered, but urged upon the Court that it could still be satisfied that the confiscation aspect to the penalty was disproportionate to the infringement and in those circumstances disapply s. 28(5)(b) of the Act of 2006.

54. Addressing the second issue which he had identified, counsel accepted that it could not be contended on the evidence before the Court that, as a result of the forfeiture order, Mr. Meijvogel could not exercise his profession or could not continue fishing. However, the effect of the detention of his vessel was that it had some detrimental impact on the course of his career and profession, and the Court was asked to take that into account in its proportionality assessment.

55. Mr. McDonagh SC, replying on behalf of the respondent, submitted that the importance of the Common Fisheries Policy has been emphasised by Mr. Campbell in his affidavit. He said the importance of that was repeatedly referenced in the recitals to the various regulations which had been open to the Court at various points in the proceedings. He submitted that it was an essential aspect of the way in which the Common Fisheries Policy is managed, reflecting the reality that in many cases one is never going to find out what fish actually went through illegal facilities, that penalties are set and imposed at a level which is genuinely dissuasive and deterrent. He submitted that absence of evidence is not evidence of absence. The case had not proceeded on the basis of the number of fish in the sump, but rather on the basis of what the machinery was capable of doing. It was illegal machinery, with the capacity to wreak havoc with aspects of the common fisheries policy as had been explained by Mr. Campbell. In his submission, the reality was that the penalties have to be significant.

56. He suggested that Mr. Pillar’s evidence did no more than seek to cast doubt on evidence which was relied upon by the jury on convicting. The appellant has, however, appealed against his conviction and his conviction had been upheld.

57. Mr. McDonagh suggested that on the issue of proportionality very little had been put into the balance by the appellant to counterweigh the important policy considerations underpinning the imposition of the penalty regime which currently exists. The DPP’s position was that this was a significant and serious offence with the capacity to have significant consequences for the European fishing industry, and that it was essential to bear in mind the dissuasive effect that any sanction must have.

58. Counsel accepted, in response to a query from the bench that grading equipment including the chute set up at issue in this case, does not come within the definition of fishing gear as set out in the Act of 2006. He accepted that grading equipment is not used to catch fish and that it was only used for processing fish. He was queried as to whether it was proportionate to confiscate the vessels fishing gear in its entirety in circumstances where that gear has not been involved in the infringement at issue. In response to this counsel maintained that the definition in the Act of 2006 is not an exhaustive one but rather is an inclusive one and that items not listed might come within the definition.

Moreover, and be that as it may, there was a deterrent requirement having regard to the well-established policy statements reiterated again and again in the regulations and legislation providing for, and implementing, the Common Fisheries Policy, and for there to be effective deterrence it was appropriate to provide for confiscation of both catch and fishing gear. Moreover, in counsel’s submission there was no evidence that the level of forfeiture, which was the appellant’s real complaint, has impacted on him personally in any significant way.

59. Counsel agreed with a suggestion by a member of the bench that while there might not be a strong need to specifically deter Mr. Meijvogel from further infringing the regulations at issue, there was perhaps a need to provide for general deterrence in the circumstances of the case.

60. Mr. Sweetman B.L., in rejoinder, suggested that counsel for the respondent, in maintaining absolute focus on the need for a dissuasive penalty, had in effect abandoned the idea that there was evidence before the Court establishing a causal link between the operation of the illegal machinery in question and the amount of damage done to the environment or fish improperly retained. He reminded the Court that Article 89.2 of the Control Regulation says:

“The overall level of sanctions and accompanying sanctions shall be calculated, in accordance with the relevant provisions of national law, in such a way as to make sure that they effectively deprive those responsible of economic benefit derived from their infringement without prejudice to the legitimate right to exercise their profession.”

61. It further provides:

“Those sanctions shall also be capable of producing results proportionate to the seriousness of such infringements”.

62. He suggested that the effect of counsel for the respondent’s submission was that, unless the appellant produced some new evidence, he was effectively debarred from any relief.

He invited the Court to reject that proposition. Counsel further rejected the suggestion that Mr. Pillar had had nothing new to say, but he suggested that what he had to say was now of less relevance in circumstances where the prosecution appeared to have abandoned any suggestion that there was a causal link between the use of the equipment as observed and any actual discarding or high grading. He reminded the Court that the only charge laid had focused on the technical operation of the apparatus and its capability. It was never alleged that actual high grading had been detected. He pointed out that it would have been open to the respondent to have also prosecuted the owner, or to have prosecuted the owner instead of the master, but they did not do so.

63. Finally, addressing the respondent’s contention that the sentencing function which the Court must give priority to here is the deterrent or dissuasive one, he submitted that this was not required by Article 89.2 and Article 90.1 of the Control Regulation in the absence of any causality in the particular circumstances, i.e., a relationship between the detected infringement and significant actual damage being caused. He suggested that the Court should have regard to the fact that the infringement was a technical one which had not caused actual damage, albeit that it had the potential to do significant damage.

Discussion and Decision

64. In our earlier judgment of the 25th of July 2023, having rehearsed in detail the jurisprudence of the CJEU and identifying the policy considerations underpinning the Common Fisheries Policy and the relevant regulations at issue in these proceedings, we set forth a clear road map as to the type of evidence that we considered would be of assistance to the Court in engaging with the proportionality argument being advanced by the appellant.

65. We have received evidence from the respondent, in the form of affidavit evidence/testimony from Mr. Daly and Mr. Campbell regarding the prevalence of grading equipment infringements, the extent of the economic impact of such infringements, the implications for the CFP in terms of the shared efforts of Member States to reduce overfishing and ensuring the long-term environmental sustainability of fishing activities of a failure to deter and adequately control grading equipment infringements, and the likely undue economic benefit derived, or that might have been derived, from the particular infringement detected in this case.

66. In regard to the likely undue economic benefit derived, or that might have been derived, from the particular infringement detected in this case, we accept in circumstances where the prosecution did not charge the appellant with actual high grading, but merely with having on board equipment set up in a manner that was capable of high grading and allowing broken fish/undersized fish/non-target species of fish to be returned to the sea, rather than being immediately frozen, that no significant actual economic benefit to the appellant has been proven by the prosecution. While we may infer from the evidence before us that there would be a potential economic to the appellant were the equipment, as so set up, to be used for high grading, but that that economic benefit has not been quantified.

67. We have clear evidence, however, from Mr. Campbell of the importance of accurate fish stock assessment to the successful implementation and operation of the Common Fisheries Policy and to the effect that widespread infringements, of the nature of that detected, involving the (in this case, admitted) discharging of broken fish/undersized fish /non-target species of fish to the sea in the course of grading operations, whether deliberately engaging in high grading or not, will have profoundly negative implications for the quality of fish stock assessment, and therefore the provision of fish stock management advice. In the circumstances we consider that there must be effective deterrence of such infringements.

68. Moving to the appellant’s side of the case, we note that we have received evidence concerning the overall value of all and any fishing gear found on the boat to which the offence relates, i.e., that it was valued at €195,000, per the estimate given by Mr. Daly to this Court. While that was his evidence, we further note that the court below was prepared to accept a lower figure of €55,000 in respect of the fishing gear, and there has been no dispute about that. We have further received evidence that as the impugned equipment does not technically qualify as “fishing gear”, there was no prohibited or noncompliant fishing gear found on the boat to which the offence relates.

That having been said, the impugned equipment had an estimated value of €70,000. We also received evidence concerning the appellant’s employment and financial situation. It is clear that for a finite period he may have suffered some diminution in income, due to the boat being tied up for a period in consequence of the infringements at issue in this case having been detected, and of consequential modifications to installed equipment having to be made, bringing with them re-certification requirements; but it is equally clear that there is no evidence of significant future potential impacts of any proposed forfeiture on his right to exercise his profession and right to earn a livelihood as the master of a fishing vessel.

The appellant has put forward as mitigation, through the evidence of Mr. Pillar, that he had reason to believe that the equipment on board was compliant with all regulations in light of MMO and Lloyd’s Register inspections, and that insofar as the detected infringement was concerned that any fish observed as being discarded overboard by members of the naval boarding party would have been within what Mr Pillar said is a recognised “de minimis” allowance. We do not attach great weight to either consideration. It was his job as Master to familiarise himself in detail with what the regulations required and to ensure that they were complied with.

The contention that only a de minimus quantity of broken fish/undersized fish /non-target species of fish were going into the sump to be then discarded to the sea was not accepted by the prosecution, and we find such evidence as was adduced in regard to it to be unconvincing, and we are not persuaded by it. We prefer the evidence of Leading Hand Cotter as disclosed in the transcript concerning what he actually saw happening during the boarding, to that of Mr. Pillar who was postulating a theoretical explanation to account for the fish that were said to have been observed going down the chute and also as being present in the sump.

69. We are of the view, having regard to the totality of the evidence, that the appellant must bear at least a moderate level of culpability for what occurred. No further evidence concerning any other relevant personal circumstances of the appellant was adduced.

70. Having weighed all of the relevant circumstances particular to this case, and the wider policy considerations underpinning the legislative instruments relevant to this prosecution, we have not been persuaded that we would be justified in disapplying s. 28(5)(b) of the Act of 2006. In saying that, we have approached the case on the basis that the infringement that we are concerned with is one to which Article 89 of the 2009 Control Regulation applies in the circumstances of the case rather than Article 90 of that Regulation. Nevertheless, a sanction must be provided for infringements such as that prosecuted in this case which is effective, proportionate and dissuasive in deterring similar offending. We do not consider, insofar as s. 28(5)(b) of the Act of 2006 provides for the forfeiture of all and any catches or fishing gear found on the boat to which the offence relates, that in the circumstances of this case it goes beyond what was necessary in order to attain objectives legitimately pursued by the relevant legislation. We consider that the matter was serious (in terms of the gravity of the offending conduct for sentencing purposes, not that it was a serious infringement coming within Article 90), that this appellant’s culpability was at a moderate level, and that, while the harm done was minor, in actual fact there was the potential for great harm to be caused. In terms of his culpability, the appellant was the Master of a fishing vessel with significant responsibilities in terms of ensuring the compliance of his operations with regulatory requirements and he failed to discharge those responsibilities.

71. In order for the objectives being pursued by relevant legislation to be achieved, there requires to be a penalty for infringements which is effective, proportionate and dissuasive.

There is no evidence before us suggesting that to require forfeiture of all catches and fishing gear on board the appellant’s then vessel, the Wiron 5, would disproportionately impact on his legitimate right to exercise his profession as the master of a fishing vessel and to earn a livelihood into the future. The evidence before us is to the effect that he has left the employment of his previous employer and he is currently engaged in new employment again as the Master of a fishing vessel, and indeed was at sea and engaged in that employment during the most recent hearing before this Court. While we have little doubt that the sanction provided for by law is nonetheless a significant one, it is meant to be such. It will, however, impact primarily on the owner of the Wiron 5, rather than on the appellant personally, and that being so it is not disproportionate insofar as the appellant is concerned. It is as it should be.

72. Accordingly, and in conclusion, we are satisfied in the circumstances of the case that it is appropriate to reimpose the sentence that was imposed by the court below. Accordingly, we again impose a fine of €500 and further order confiscation of catches to the value of €344,960 and of fishing gear to the value of €55,000.