Turf Cutters going to the High Court

joela

From Deputy Flanagan Facebook page

Please Share. DOMESTIC TURF CUTTERS IN THE HIGH COURT IN APRIL.

An ex-parte application was made in the High Court today by counsel acting for Turf Cutters and Contractors Association members, John O'Connor and Christopher McCarthy, both of whom are the subject of a criminal prosecution before the Kerry Criminal Circuit Court.
The ex-parte application which was moved before Justice Peart sought leave to apply for a judicial review of the prosecution, where in particular, the applicants are seeking: -
1. An order of prohibition preventing the prosecution and / or trial of the applicants and each of them on the charges of using, without lawful authority, machinery for the extraction or mining of natural resources including turf or peat where such use on the European site of such object was likely to have a significant effect on or adversely affect the integrity of the European site contrary to regulation 35 (1) (b) and 67 (2) of the European Communities (Birds and Natural Habitats) Regulations 2011.
The applicants are also seeking certain declarations by the High Court to the effect that the creation by way of ministerial regulation by the Minister of the indictable offence (of which the applicants are charged) is: -
1. ultra vires, unconstitutional, invalid and of no legal effect.
2. is not necessary for the purpose of giving full effect to Directive 92/43/EEC of the 21 May 1992 on the conservation of habitats and wild flora and fauna and/or not necessitated by Ireland’s membership of the European Union.
3. is not properly grounded on a consideration of whether the penalty provided for under the regulation would be effective in implementing the directive and/or would act as a deterrent and/or would otherwise be proportionate having regard to the act or omission impugned.
The applicants are also seeking a stay pursuant to Order 84 and/or the inherent jurisdiction of the Court, staying the said prosecution and/or trial of the Applicants and each of them pending the determination of the judicial review proceedings.
The Court granted leave to bring the judicial review proceedings, which are now returnable for the 28th April, 2014. The Court also granted a stay on the criminal prosecution until that date or until such further order of the court.
The TCCA have always strived to deal with this issue by dialogue and negotiation. It is a pity that we have been forced down the legal route. Especially at at time when the country has so many other competing needs for its finances. We have always said that we would fight this on the bogs, in the Dáil and if necessary in the courts. That necessity has now arisen.

https://www.facebook.com/Lukemingflanagan/posts/598536713556982?stream_ref=10

Can any of you legal eagles please explain what exactly they are trying to say here?

benway

Judicial review looking to prevent a trial for cutting turf in violation of the European Communities (Birds and Natural Habitats) Regulations 2011.

Seeking to have sections of the act declared unconstitutional and invalid on the basis that an indictable offence under the regulations is disproportionate / unnecessary / irrational / an ministerial overreach beyond what's necessary to implement the EU Directive it purports to give effect to.

They've satisfied the High Court that there's some kind of stateable case there (although the bar really isn't high for this), so now it's going to go ahead.

Prosecutions are now on hold until the JR is determined.

Not sure if what I've written is much better, tbh. Hard to say exactly what grounds they're going raising without having been in court or seen the papers.

joela

Thanks Benway.

I cannot understand how there can be merit in this case but then I have no legal qualification so am presumably missing the finer points! The Birds and Habitats Regs apply to a range of habitats and species and not just bogs so surely a case like this could have far reaching consequences for environmental protection in Ireland. I'd also like to know who is funding the High Court case?

benway

Hard to say what's in it, really. A good senior specialising in JR can find a constitutional point most places he/she looks.

Must be emphasised that the bar is not set high when you're applying for leave for judicial review. Getting leave is no indication of their prospects for success.

Wheelnut

joela wrote: »

... I'd also like to know who is funding the High Court case?

Seems to be the turf cutters.

Please Share. DOMESTIC TURF CUTTERS IN THE HIGH COURT IN APRIL.

An ex-parte application was made in the High Court today by counsel acting for Turf Cutters and Contractors Association members, John O'Connor and Christopher McCarthy, both of whom are the subject of a criminal prosecution before the Kerry Criminal Circuit Court.

joela

Wheelnut wrote: »

Seems to be the turf cutters.

Free legal aid? How is Free Legal Aid funded?

During an application for free legal aid for the men, their solicitor Philip Moroney said that under the legislation there was a provision that did not allow for legal aid, and he indicated that this was unprecedented in Irish law.http://www.rte.ie/news/2013/0509/391378-turf-cutting-kerry/

Claw Hammer

benway wrote: »

Judicial review looking to prevent a trial for cutting turf in violation of the European Communities (Birds and Natural Habitats) Regulations 2011.

Seeking to have sections of the act declared unconstitutional and invalid on the basis that an indictable offence under the regulations is disproportionate / unnecessary / irrational / an ministerial overreach beyond what's necessary to implement the EU Directive it purports to give effect to.

Sections of an Act can't be declared unconstitutional in a JR. There has to be a Plenary action.

benway

Claw Hammer wrote: »

Sections of an Act can't be declared unconstitutional in a JR. There has to be a Plenary action.

Not sure about that, certainly Bupa were allowed to challenge the constitutionality of s. 12 of the Health Insurance Act 1994 in the context of JR proceedings, there was no mention of there being any issue with this in the High Court or Supreme Court in a procedural appeal in relation to whether VHI should be joined given the nature of the reliefs sought or in the substantive appeal (see relief (b)). In the end, no declaration was granted but, and I can't off the top of my head think of an example of a declaration being granted in JR proceedings, but my understanding is that there's no hard and fast rule that a declaration can only be sought in plenary proceedings. You still have to join Ireland and the Attorney General, though.

But in any event, in the turf cutting case it's regulations that are at issue rather than the Act, and a declaration is certainly available in respect of the former, typo on my part.

blueythebear

Claw Hammer wrote: »

Sections of an Act can't be declared unconstitutional in a JR. There has to be a Plenary action.

JR is often used to challenge legislation. There's no requirement for plenary action.

joela

Judgement on this case http://www.courts.ie/Judgments.nsf/0/78D32B32A972680D80257EBA002B750D The turf cutters lost their case.

Wheelnut

Do we know if the turf cutters got legal aid? If so, was it for the prosecution or the High Court review or both?

joela

I believe there was mention of legal aid but I don't know if it was only for the criminal prosecution or both.