Two Co Leitrim turf cutters will argue in the Supreme Court that they should not be prosecuted under habitats protection legislation for allegedly refusing to allow wildlife officers to access their bogland.
The appeal should be resolved as soon as possible, a panel of three Supreme Court judges said, as Ireland is the subject of European infringement proceedings for allegedly failing to take action to halt peat cutting within certain areas of conservation.
Gerry Gearty and Sean Beirne, both with addresses in Eddercloone, Carrick-on-Shannon, are challenging the legislation under which officers sought to access their lands at Cloneen bog in Co Longford.
They allege section 3(3) of the European Communities Act 1972, which gave effect to the EU Habitats Directive, is unconstitutional. They argue that the creation of indictable offences by way of statutory instrument is impermissible.
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The men are facing charges at Longford District Court for allegedly obstructing National Parks and Wildlife Service officers and gardaí who sought access to their bog in June 2012. Their prosecutions have been paused while the men pursue their civil challenges.
The High Court’s Mr Justice Garrett Simons rejected their claim last July, finding that the provisions of the 1972 Act are capable of being applied in a way that is consistent with article 15.2.1 of the Constitution, which provides that the Oireachtas has the “sole and exclusive” power of making laws for the State.
The State, as a European Union member, must put in place effective, proportionate and dissuasive penalties for an infringement of European law, he held. In some instances, a member state’s level of discretion will be narrowed so as to require it to create a criminal offence with significant sanctions, the judge ruled.
The Supreme Court judges have found there were exceptional circumstances to warrant an appeal straight to the top court, skipping the Court of Appeal.
It is of general public importance, the judges said, that the court determines the constitutionality of whether a minister of the government can create indictable offences by regulations made under section 3 of the 1972 Act.
Noting Ireland is the subject of infringement proceedings, the judge said it is in the public interest that the appeal is resolved as soon as possible.
The respondents — the Director of Public Prosecutions, the Minister for Heritage, the Attorney General and Ireland —opposed a grant of leave to appeal, contending that section 3 of the 1972 Act enjoys a presumption of constitutionality and has been upheld in a judgment delivered in 1994.
They highlighted the requirements of EU member states to avoid the deterioration of natural habitats and pointed to the European Commission’s proceedings against Ireland over wrongful peat cutting.
A date for the appeal has not yet been set.
