Supreme Court dismisses appeal upholding District Court's power to detain fishing vessel under s. 234 independently of s. 233A.

THE SUPREME COURT

186/05

Murray C.J.

Kearns J.

Irvine J.

Between

Claude Michael Joseph Lavole

and

Carvida Limited

Applicants/Appellants

-v-

District Judge John O’Donnell, Ireland and the Attorney General

Respondents

JUDGMENT of Murray C.J. delivered on the 27th day of July 2007

This is an appeal by the appellants from an order of the High Court refusing, in an application by way of judicial review, an order of

certiorari quashing the order of the first named respondent dated 7th December, 2004, which directed the detention of a fishing

vessel pursuant to s. 234 of the Fisheries (Consolidation) Act, 1959 as inserted by s. 13 of the Fisheries (Amendment) Act, 1978 and

amended by s. 12 of the Fisheries (Amendment) Act, 1994.

The order directed that the vessel be detained at the port of Killybegs until the prosecution which had been instituted against the

first named appellant, for an offence under certain provisions of the said Act, had been adjudicated upon by a District Court judge

under s. 4A of the Criminal Procedure Act, 1967 as inserted by s. 9 of the Criminal Justice Act, 1999 or otherwise adjudicated upon. In

addition the order provided for the release of the vessel on the provision of a surety in cash or in the form of a bond in the sum of

€165,000.

Background

The first named appellant is the captain of the fishing vessel, the “Carvida” which was the object of the order of detention pursuant

to s. 234. It is an Irish registered vessel. The second named appellant is the owner of the vessel.

It was arrested in the early hours of December 3rd ,2004, by Mr. James Boyle, a sea fisheries protection officer, pursuant to s. 233 of

the Fisheries Act 1959 (as amended). At the time of the arrest and detention of the vessel the first named appellant was informed

that the vessel and its crew, including the captain, were being detained at the port of Killybegs pursuant to s. 233(1)(g)(ii) of the

Fisheries Consolidation Act 1959 as inserted by s. 11 of the Fisheries (Amendment) Act, 1978, hereafter the Act of 1959. The vessel

was arrested in connection with a suspected logbook offence. This is a potentially serious offence as the proper maintenance of

logbooks on fishing vessels is a key element in the supervision and enforcement of the fishery laws.

As the learned High Court judge indicates in his judgment the first named appellant was not brought before the District Court in

Donegal until Sunday 5th December, 2004, because no District Court judge was available on Saturday 4th December. When he was

brought before the District Court on December 5th an application was made for a 48 hour detention order in respect of the vessel

pursuant to s. 233A of the Act of 1959. That section was inserted by s. 12 of the Fisheries (Amendment) Act 1978 as amended by s.

11 of the Fisheries (Amendment) Act, 1994. The first named respondent made an order for the detention of the vessel from 11.45

a.m. on 5th December 2004.

On Monday 7th December, 2004, at 8.05 a.m., the first named appellant was arrested by a member of the gardaí and brought to

Killybegs Garda Station where he was charged with a number of logbook fishery offences. The appellant was then brought before

Letterkenny District Court at 11.35 a.m. where Garda McNicholas gave evidence of arrest, charge and caution. According to the

learned High Court judge’s findings the matter appears to have been allowed to stand in the District Court list until 4.25 p.m. that

afternoon. In the meantime both the solicitor for the appellant and the solicitor acting for the State engaged in discussions, inter alia,

for the purpose of agreeing the amount of a bond which could be entered into in lieu of the physical detention of the vessel, its

fishing gear and catch in the event of an order for detention being made pursuant to s. 234 of the Act of 1959. The steps taken with

a view to agreeing the amount of the bond involved contact with the office of the third named respondent. Eventually a bond in the

sum of €165,000 was agreed. The parties went back into court at 4.25 p.m. The solicitor for the appellants made submissions as to

why a detention order pursuant to s. 234 should not be made but these were not accepted by the District Court judge, the first

named respondent, and an order was made detaining the vessel and its master, the first named appellant, at the port of Killybegs until

the proceedings had been adjudicated on by a District Court judge pursuant to s. 4A of the Criminal Procedure Act, 1967 as inserted

by s. 9 of the Criminal Justice Act, 1999. The bond in the amount agreed was set in respect of the release of the vessel. The first

named appellant was remanded on bail.

On 21st December, 2004, the applicant applied to the High Court for leave to apply for certiorari by way of judicial review and certain

declarations in respect of the Order of 7th December directing the detention of the vessel in question. Only the detention of the

vessel pursuant to the order of 7th December is now sought to be impugned.

Relevant Provisions of the Fisheries Acts

Section 233(1)(g) of the Act of 1959 (as amended) provides as follows:

"233. (1) Every sea fisheries protection officer may, for the purpose of enforcing Chapter II of this Part or any

instrument made thereunder or for the purpose of enforcing Chapter III of this Part or any order made thereunder, do

with respect to any sea-fishing boat within the exclusive fishery limits of the State and (subject to the rules of

International Law) outside those limits all or any of the following things:

( g ) if he suspects that there has been a contravention by any person on board the boat of the provisions of Chapter II

or III of this Part, he may without summons, warrant or other process

(i) if the boat is not in a port, take the boat and all persons on board to the nearest or most convenient port, and

pending the taking by him of the steps required by section 233A or 234. as may be appropriate, detain the boat

and the persons on board, and

(ii) if the boat is in a port, detain the. boat and the persons on board at that port or take it and them to a more

convenient port and there detain it and them, pending (in either case) the taking of the steps aforesaid;".

Section 233A of the Act of 1959, as inserted by s. 12 of the Act of 1978 and as amended by s. 11 of the Fisheries (Amendment) Act

1994 provides as follows:

“(1)Where a sea fisheries protection officer has, in the exercise of the powers conferred on him by section 233, detained

a boat and the persons on board the boat at a port, any sea fisheries protection officer who suspects that a person on

board the boat has committed an offence under a provision of Chapter II or III of this Part shall (unless he is proceeding

under section 234), as soon as may be, apply to a judge of the District Court for an order authorising the continued

detention of the boat and those persons, and the said judge may grant an order authorising such detention for a period

of 48 hours if he is satisfied that the applicant sea fisheries protection officer has such a suspicion as aforementioned.

(2) Upon expiration of the period of 48 hours –

(a) the boat shall be released unless an order providing for its further detention has been made under section 234

before the expiration of the said period of 48 hours and,

(b) each person on board the boat shall be released unless an order providing for his further detention has been

made under the said section before the expiration of the said period.”

Section 234 of the Act of 1959, as inserted by s. 13 of the Act of 1978 and amended by s.12 of the Fisheries (Amendment) Act 1994,

provides as follows:

“Where a sea fisheries protection officer has in exercise of the powers conferred on him by section 233 detained a boat

and the persons on board the boat at a port, any sea fisheries protection officer shall, as soon as may be, bring the

master of the boat and any other persons on board the boat against whom proceedings for an offence under a provision

of Chapter II or III of this Part have been or are about to be instituted before a judge of the District Court and

thereupon the said judge shall, if he is satisfied that such proceedings have been or are about to be instituted against

the master and those other persons or any one or more of them, by order directed to a sea fisheries protection officer

require such officer to detain at a specified port in the State the boat and each person (including the master) aforesaid

in respect of whom he is so satisfied until such proceedings have been adjudicated upon by a judge of the District Court

under section 8 of the Criminal Procedure Act, 1967, or under section 2 (2) of the Fisheries (Amendment) Act, 1978, or

otherwise in the exercise of his summary jurisdiction.”

Interpretation Act 1937

Section 20(1) of the Interpretation Act 1937 provides as follows:

“Whenever any statute or portion of a statute is repealed and re-enacted, with or without modification, by an Act of the

Oireachtas, references in any other statute or in any statutory instrument to the statute or portion of a statute so

repealed and re-enacted shall, unless the contrary intention appears, be construed as references to the portion of such

Act of the Oireachtas containing such re-enactment.”

Issues

The first issue raised in the appeal concerns the provisions of the order of the District Court of the 7th December, 2004, whereby the

vessel was detained until the proceedings before the District Court had been adjudicated upon by a District Court judge pursuant to

s. 4A (as inserted by the Criminal Justice Act, 1999) of the Criminal Procedure Act, 1967. The appellant submits that the District

Court judge had no jurisdiction to make an order by way of reference to s. 4A. It was submitted that he was incorrect in holding that

a reference to s. 8 of the Act of 1967 in s. 234 of the Act of 1959 must be deemed to be a reference to the said s. 4A by reason of

s. 20(1) of the Interpretation Act, 1937. The learned High Court judge was incorrect, it was further submitted, in holding that s. 4A

was a re-enactment with modification of the repealed s. 8 within the meaning of s. 20(1) of the Act of 1937.

In the second issue the appellant submitted that the District Court judge had no jurisdiction to make the Order of 7th December

pursuant to s. 234 by reason of the fact that at the time when he made the Order for the further detention of the vessel, the 48

hour period of detention made in respect of the vessel pursuant to s. 233A had expired. It was also submitted that the trial judge was

incorrect in holding that s. 234 was independent of s. 233A.

A third issue was raised by the appellants in this appeal namely that the Order of 7th December of the District Court detaining the

vessel was unlawful and made without jurisdiction because the master of the boat, the first named appellant, was not brought before

the District Court, having been detained pursuant to s. 233, “as soon as may be” as required by the terms of s. 234 itself.

A perusal of the application for judicial review and the order granting leave to the appellants to bring the judicial review proceedings

before the High Court makes it clear that this third point was not a ground upon which leave to bring judicial review proceedings was

sought or granted. It is a point that was not dealt with by the learned High Court judge in his judgment clearly because, as his

reference to the arguments of the parties makes clear, the point was not argued before him.

An issue had been raised as to whether the first named appellant had been brought before the District Court “as soon as may be” but

this was directed and confined to that requirement as it appears in s. 233A with a view to impugning the order of the District Court

made on 3rd December, 2004, and that issue or any issue concerning the validity of that particular order is no longer a part of the

proceedings.

Counsel for the respondents objected to this point being argued for the first time in the Supreme Court.

I am not altogether convinced that the arguments of the appellants on this point are well founded but I do not consider it is either

necessary or appropriate for this Court to decide the issue. In principle judicial review proceedings should be confined to the grounds

upon which leave was granted. This is what the rules require and is necessary for the efficient and fair conduct of litigation. It is open

to a party to such proceedings to apply for an order amending or extending the grounds for judicial review but that was not done in

this case. Furthermore, this Court is exercising its appellate jurisdiction and is not a Court of First Instance.

In these circumstances I am satisfied that it is neither necessary nor appropriate for this Court to address this third issue for the first

time in this appeal.

The First Issue – the repealed and re-enacting provisions:

As can be seen from the provisions of s. 234 cited above, that section makes express reference to s. 8 of the Criminal Procedure Act,

1967 in providing, inter alia, that a vessel may be detained pending an adjudication on the charges in question pursuant to that

section.

In this case the State contends that since s. 8 was repealed by the Criminal Justice Act, 1999 and, it was submitted, re-enacted by

a new s. 4A that the reference to s. 8 in s. 234 must be deemed to be a reference to s. 4A by virtue of s. 20(1) of the Interpretation

Act, 1937.

Section 8(1) of the 1967 Act provided that “If the justice is of the opinion that there is a sufficient case to put the accused on trial

for the offence with which he has been charged, he shall send him forward for trial.” The section also made provision for an accused

to be charged with a summary offence if the District Court judge was of the opinion that a summary offence only was disclosed and

otherwise, no offence being disclosed, for the discharge of the accused.

Section 8 of that Act was repealed by s. 10 of the Criminal Justice Act, 1999.

The foregoing Act of 1999 inserted in the Act of 1967 a new section, s. 4A subsection 1 of which provides

“Where an accused person is before the District Court charged with an indictable offence, the Court shall send the

accused forward for trial to the court for which he is to stand trial (the trial court) unless –

(a) the case is tried summarily,

(b) the case is being dealt with under section 13 or

(c) the accused is unfit to plead.”

Section 13 refers to a case in which the accused pleads guilty in the District Court and has no application here.

It is common case that the offence on foot of which the first named appellant was brought before the District Court on the 7th

December, 2004, was an indictable offence.

Subsection 2 of s. 4A provides that the accused shall not be sent forward for trial without the consent of the prosecutor and

subsection 5 provides that the accused shall not be sent forward for trial until the documents mentioned in s. 4B(1) have been served

on the accused. For present purposes these documents can be considered as being essentially the same documents as those which

were required to be served under other repealed sections of the Act of 1967 namely those documents which comprise what is

commonly referred to as the ‘Book of Evidence’.

In this case the learned High Court judge held that the District Court judge was correct in treating s. 4A of the Act of 1967 (as

inserted by the Act of 1999) as constituting a re-enactment, with modification, of the said s. 8 which had been repealed.

Accordingly, he found that the District Court judge was entitled to deem the reference to s. 8 in s. 234 of the Act of 1959 (as

amended) as a reference to s. 4A by virtue of s. 20(1) of the Interpretation Act 1937.

Section 20(1) of the Act of 1937 itself has a fairly long history. It replaced s. 13(1) of the Interpretation Act 1923 which in turn

replaced s. 38(1) of the Interpretation Act 1889, all of which were to substantially the same effect. The Act of 1937 has since been

repealed by the Interpretation Act, 2005 which came into operation on the 1st January, 2006 and, not being the law in force on the

date in 2004 when the order of the District Court was made, has no bearing on the issues on these proceedings.

Section 20(1) is in the nature of a provision which has long been available to legislatures, and in practice the parliamentary

draftsman, to ensure continuity in statutory interpretation and application where a statutory provision is repealed and re-enacted,

with or without modification, without the necessity of having to trawl through all the possible references to the repealed section in

other Acts, possibly many passed over the decades, and having to recite, in a potentially cumbersome fashion, the relevant statutes

so as to expressly provide in each case that reference to the repealed section means a reference to the new section. It is also

probably intended to act as a safety net where in certain situations, particularly concerning statutes of long standing, it might be

difficult to trace with certainty, even in this electronic age, all references in many other statutes to the section which had been

repealed and re-enacted.

That s. 8 of the Act of 1967 has been repealed is obviously not in issue. That was a section which provided for the making of an

order by the District Court returning a person, charged with an indictable offence, to the court of trial. I will come to the context in

which that power of the District Court was exercised under s. 8 shortly but I note in passing that it has always been the case, and

still is the case, (except for a person who is charged before the Special Criminal Court) that persons charged or to be charged with

indictable offences have been and are brought first before the District Court which, once satisfied that the necessary legal or

statutory requirements have been fulfilled, makes an order which enables an accused to be brought before the appropriate court for

trial on indictment.

When s. 8 was repealed, it being then the only applicable section through which the power to return for trial was exercised by the

District Court, it was inevitable that some further section would be enacted at the same time so as to ensure that there continued in

place a procedure or mechanism by which persons charged with indictable offences could be brought before a court on foot of the

relevant charges as soon as practicable pending the matter being sent forward to a court of trial in due course of law. There is no

power for example to charge a person in the first instance before the Circuit Court or the Central Criminal Court the two principle

courts of trial, other than the Special Criminal Court.

It was submitted on behalf of the first named appellant that s. 4A of the Act of 1967 was such a radical departure from the provisions

of s. 8, because it effected such a fundamental change in the role of the District Court concerning a return for trial, that it could not

be considered as either a re-enactment or a re-enactment with modifications of s. 8.

Before examining in further detail the context in which s. 8 operated before its repeal and the import of the changes or modifications

brought about by the insertion in that Act of s. 4A by the Criminal Justice Act,1999 I propose to refer to the case law relied on by the

parties and in particular the appellants in this case.

Case Law

Counsel for both parties referred to the judgment of this Court in Southern Health Board v. C.H. [1996] 1 I.R. 219 in which the Court

concluded, for the purpose of those proceedings, and notwithstanding that s. 58 of the Children Act, 1908 had been repealed by the

Child Care Act, 1991, that the District Court was permitted by virtue of s. 20 of the Interpretation Act, 1937 to operate as if the Act

of 1908 had not been affected by the Act of 1991. That question was very much subsidiary to the other substantial issues which

were before the Court in that particular case and counsel for the appellant submitted that the decision represented no more than an

ad hoc example of the application of s. 20 of the Act of 1937 and did not discuss or make reference to any question or principle as to

how it should be applied. I think counsel for the appellant is correct in that submission. In that case the Court clearly did not feel it

necessary to consider, from the point of view of general principles, the meaning and ambit of s. 20 and simply concluded that it was

relevant and applicable to the functions to be exercised by the District Court in that case.

It also seems to me that much the same can be said for the other authorities, with a limited exception in one case, relied upon by the

appellant in support of his submission that the repeal of s. 8 and its re-enactment in s. 4A is so radical as to be incapable of being

considered as a re-enactment with modification, within the meaning of s. 20. Counsel for the appellant referred inter alia to Stevens

v. General Stein Navigation Company Limited [1903] 1 K.B. 890, R v. Goswami [1969] 1 Q.B. 453. Jones v. Commissioner of Taxes

[1942] Tas. S.R, 1, and Ville de Montreal v. I.L.G.W.U. Centre Inc. [1974] S.C.R. 59.

In the Stevens case which was considering the application of an English provision corresponding to s. 20, the question of principle

was of a very limited nature. Stirling L.J. stated at p.894:

“The original and re-enacted clauses need not be identical, and the sole question is whether when the modification takes

the form of extending and not narrowing the former provisions it amounts to a modification within the meaning of the

Interpretation Act.”

In that case the re-enacting provision modified the original provision so as to include the words “all machinery or plant used in the

process of loading or unloading of any ship in any dock, harbour or canal.” The material change in the re-enacted provisions was the

inclusion of the word “harbour”. This was a very substantial change for those affected by it. Collins M.R. posed the question as to

whether the introduction of the word “harbour” was “…so radical an alteration of the previously existing section as not to fall within

the term ‘modification’?” He concluded that the modified provision was re-enacted -

“with the intention of altering the existing state of things by a modification of the Factory Act of 1895. This intention [of]

the Interpretation Act, 1889, enabled the Legislature to carry out in the way in which it has been carried out, for in my

opinion there is no reason to limit the word “modification”, which is equally applicable whether the effect of the

alteration is to narrow or to enlarge the provisions of the former Act.”

Although the Stevens case may be taken as a precedent, if one were required, for the proposition that a modification can extend as

well as narrow the provision repealed, it is otherwise simply a particular example of the application of this kind of interpretative

provision. R v. Goswami, cited above, followed the decision in Stevens, and rejected an appeal in a criminal case by concluding that a

reference to repealed enactments could be deemed to be a reference to the provisions of a later Act which re-enacted those repeals.

There is no statement or principle in that case, which could be said to re-enforce the arguments of the appellant in this case.

Similarly as regards the case of Michaels v. Harley House [1997] 1 W.L.R. 967 , counsel for the appellant did acknowledge that the

precedent was of limited value and that it did not discuss the operation of the corresponding English law except to say that it applied

to the facts of that case.

I do not consider it necessary to review the other cases relied upon by the appellant, one of which was a Tasmanian case and the

other a Canadian case because in the circumstances of this case I think they serve no more than examples of discrete ad hoc

decisions in the application of national legislation and do not contribute to the interpretation and application of s. 20(1) of the Act of

1937 in this case.

In short, in my view, the case-law referred to by the parties do not assist in advancing the arguments of either side to any significant

degree.

The repealed Section 8

As counsel for the appellant pointed out a decision made by a District Court judge pursuant to s. 8 was made in the context of the

preliminary examination procedure then provided for in the Act of 1967. That provided for the service on an accused of certain

specified documents, generally referred to as the Book of Evidence, which included statements of the evidence which it was proposed

would be given by specified witnesses at the trial of an accused. Under the preliminary examination procedure an accused also had a

right to give evidence by way of sworn deposition and to require the attendance of any person and to examine him or her by way of

sworn depositions.

In exercising his or her powers under s. 8, the District Court judge had to be satisfied that there was a “sufficient case” to put the

accused on trial. For that purpose the District Court judge had regard to the evidence before the District Court comprising the

documents contained in the Book of Evidence, any relevant exhibits and the depositions, if any, which had been taken.

The Criminal Justice Act,1999 which repealed s. 8, inserted a new section, s .4A, which has since been the section under which a

person brought before the District Court on an indictable offence may be sent forward for trial. In exercising the function or power of

sending an accused forward to the court of trial the District Court judge must be satisfied that all legal and statutory requirements

are fulfilled except that now the role of the District Court judge is more limited than it had been under s. 8 insofar as he is not

required, or indeed permitted, to decide whether there is a sufficient case to put the accused on trial for the charge or charges in

question. In short, as counsel for the appellant pointed out, there is no longer any adjudication in the District Court on the question

of their being a sufficient case to put an accused on trial.

The District Court judge must of course be satisfied on certain questions of law such as that the accused is properly before him, that

the charges are known to the law but in particular that the statutory criteria set out in the section are fulfilled namely that he is

charged with an indictable offence, that the accused is not pleading guilty and therefore that the case is not one to which s. 13 of

the Act applies, that the prosecutor consents to him being sent forward for trial and that the documents mentioned in s. 4B(1) have

been served on the accused. The statutory criteria are all provided for in s. 4A.

The right of an accused person to apply to have the prosecution against him dismissed as being ‘insufficient’ is not removed

altogether but is displaced to a post return for trial procedure. This is provided for in s. 4E of the Act of 1967 (as inserted by the Act

of 1999) according to which the accused may at any time after being sent forward for trial apply to the trial court to dismiss one or

more of the charges against him. Subsection (4) of s. 4E provides that the court shall dismiss the charge if it appears to it that there

is not a sufficient case to put the accused on trial for any charge.

Similarly the accused is not deprived of the opportunity of having evidence taken on deposition but this again is a right which falls to

be exercised by the accused after the return for trial. Section 4F of the Act of 1967, again as inserted by the Act of 1999, provides

that any time after the accused is sent forward for trial he may apply to the court for an order requiring a person to appear before a

judge of the District Court so that the person’s evidence may be taken by way of sworn deposition or, in certain circumstances,

through a live television link. The trial court may order the taking of such evidence before the District Court if it is satisfied that it

would be in the interests of justice to do so.

Re-enactment

The District Court is the jurisdiction before which persons accused of an indictable offence are first brought pending their return for

trial to the court of trial. This was the position prior to the repeal of s. 8 of the Act of 1967 and since its repeal. Such accused

persons are never brought in the first instance before the court of trial (save in the exceptional circumstances of charges over which

the Special Criminal Court, itself an exceptional Court, has jurisdiction). It is quite clear that the core functions of the District Court

as regards indictable offences is to act as the court before which persons charged with such offences are first brought and to return

the accused to the appropriate court to stand trial on indictment once the statutory conditions laid down by the Oireachtas for the

making of such an order have been fulfilled.

When the Criminal Justice Act,1999 repealed s. 8 of the Criminal Procedure Act,1967 it notionally took away the power and function of

the District Court in this regard. I say notionally, since at one in the same time it enacted, and inserted in the Act of 1967, s. 4A

which made express provision allowing the District Court to continue exercising that power and function. It thus maintained

simultaneously with the repeal of s. 8 the core function of the District Court. It is true that it modified the scope of the matters which

the District Court has to consider before it makes an order returning an accused for trial. Whether in the procedures preliminary to the

actual trial, the prosecution has demonstrated that there is “a sufficient case” for the accused to stand trial on any particular charge

is now a matter to be dealt with post return for trial rather than in the District Court prior to it. Similarly, the opportunity of an

accused to make a deposition on oath or to seek depositions from witnesses now takes place after the return for trial rather than in

the District Court prior to the return.

I do not consider that these changes alter the fact that the core functions of the District Court referred to above which it exercised

pursuant to s. 8 were maintained in the re-enactment of the jurisdiction and function of the court to return for trial those who are

charged before it with indictable offences. Although the matters to which the District Court must have regard are more limited, I do

not consider that this deprives s. 4A of its quality as a re-enactment of s. 8 with modifications.

Section 20(1) of the Interpretation Act 1937 provides that any portion of a statute so repealed and re-enacted shall, “unless the

contrary intention appears” be construed as a reference to the portion of such Act containing such re-enactment. There are no

grounds upon which it could be considered that there was any contrary intention on the part of the Oireachtas to references to s. 8

being construed as a reference to s. 4A. On the contrary the provisions of s. 4A itself indicate that such was the intention.

Counsel for the appellant also relied on a citation from Bennion Statutory Interpretation 4th Ed. (2002) where, when referring to an

equivalent provision of a British statute, he observed at p.260:-

“This provision is intended for consolidation Acts, which may include minor modifications of existing law. If applied to

anything else, it should be construed with great caution. This is because of the vagueness of the word ‘modification’ in

the parenthesis. If it was held to cover anything more than a minor modification it may alter rights and liabilities in

unintended ways.”

That citation, in the terms put, cannot be applicable to the interpretation of s. 20(1) of the Act of 1937. There is nothing in the

section or in the Act as a whole, which limits it to consolidating Acts. Neither is the word “modification” qualified by the adjective

“minor” and Bennion does not say its application is confined to minor modifications. On the other hand as a cautionary note it does

make common sense. A court, in considering, whether s. 20(1) applied in any particular case should examine whether such application

would adversely affect rights and liabilities in unintended ways. That would be a relevant factor in considering whether the new

provision was intended to be construed as a re-enactment of a repealed provision within the meaning of the section. In this case it

has not been suggested, because it is not the position, that any rights and liabilities would be affected in a way not intended by the

Oireachtas.

Accordingly I conclude that s. 4A is a re-enactment with modification of s. 8 of the Act of 1967 and that the learned High Court judge

was correct in holding that the reference to s. 8 in s. 234 of the Act of 1959 was properly deemed by the District Court judge to be a

reference to s. 4A of the Act of 1967 as inserted by the Act of 1999. That was a proper application of s. 20(1) of the Interpretation

Act,1937.

Second Issue

On this issue the appellant submits that the 48 hour period of detention imposed on the vessel pursuant to s. 233A on December

5th,2004, having expired by the time when the District Court judge made the further order for the detention of the vessel pursuant to

s. 234, the District Court had no jurisdiction or power to make that order.

It was submitted on behalf of the appellant that the learned trial judge was incorrect in concluding that s. 233A and s. 234 were

independent of one another even though they are designed to be utilised in different circumstances. It was submitted that s. 233A is

designed to facilitate a sea fisheries protection officer by allowing him time to take instructions as to whether criminal proceedings

should be instituted. Section 234 will apply where a sea fisheries officer has received instructions that criminal proceedings are, or are

about to be instituted against the master or other persons. Both sections are preliminary steps and a sea fisheries officer must

choose between the two sections as to which is the most appropriate in the circumstances. This is the reason for the use of the

phrase “unless he is proceeding under 234” in s. 233A. It was further submitted that although s. 233A and s. 234 are alternative

preliminary steps they are independent of each other only as preliminary steps. Once the preliminary step pursuant to s. 233A has

been opted for by the sea fisheries protection officer s. 234 becomes a second stage of the process since it provides that where an

order for detention is made under s. 233A the boat and person must be released “unless an order providing for his further detention

has been made under s. 234 before the expiration of the said period of 48 hours.” Accordingly at the end of the 48 hour detention

period the boat in question was no longer in detention. Accordingly the District Court had no power to make an order pursuant to 234

for further detention pending the adjudication of the District Court on the charges brought before it pursuant to s. 4A of the Act of

1967.

Counsel for the respondents submitted that where a vessel had been originally detained pursuant to s. 233, which was the case here,

and when proceedings have been instituted against the master or any other person on board the vessel, which was also the case

here, the District Court has the jurisdiction pursuant to s. 234 to order the detention of the vessel until those proceedings have been

adjudicated upon by a judge of the District Court pursuant to s. 4A of the Act of 1967. The exercise by the District Court of its

jurisdiction under s. 234 is not dependent on the existence of an order under s. 233A.

In my view the submissions of the State are well founded. There is no reference to s. 233A in s. 234. Where a master of a vessel is

charged or about to be charged with an offence under the Fisheries Acts, s. 234 clearly intends that the District Court judge should

have the power to detain the vessel until it has been decided whether or not the accused should be sent forward for trial on the

relevant charges.

Section 233A was inserted in the Act of 1959 following the introduction of legislation making certain offences under the Fisheries Acts

indictable where previously offences under those Acts were minor offences only and thus disposable before the District Court. Section

233A clearly applies to a situation where a fisheries protection officer, who, having detained a vessel and any person on board, is not

in a position to proceed with criminal proceedings there and then (otherwise he could proceed directly pursuant to s. 234), may,

pending further investigation, seek an order for the detention of the vessel and persons on board, for a period of 48 hours. There is

nothing in s. 233A restricting orders being sought pursuant to s. 234 for the detention of the vessel after the expiry of the 48 hours

period. In short, there is nothing in s. 233A to restrict the operation of s. 234. The only consequence of the expiration of the 48 hour

period is, (in the absence of any further order for detention such as under s. 234) that the vessel is no longer in detention and is

released. That is what the section itself provides. The consequence in this case, was that the vessel could no longer be detained

under s. 233A once the 48 hour period had expired and there was a period, before the making of an order pursuant to s. 234 when

the vessel could not be detained and was free to sail if that is what the owners decided should be done.

Similarly there is nothing in s. 234 which makes the exercise of the powers of the District Court to detain the vessel contingent on

their being in force or the continuing in force, of a 48 hour detention pursuant to s. 233A. In fact there is no mention of s. 233A in s.

234. It is clear that the power of the District Court to detain a vessel pursuant to s. 234 is an autonomous power and independent, in

this respect, of s. 233A.

Accordingly in my view this ground of appeal is not well founded.

In these circumstances the appeal should be dismissed.