In the Irish Courts
| Date | 01 May 1980 |
| DOI | 10.1177/002201838004400208 |
| Published date | 01 May 1980 |
| Subject Matter | Article |
In
the
Irish
Courts
Comments
on
Cases
COURT
OF APPEAL IN
NORTHERN
IRELAND
FORFEITURE
OF CAR USED IN CONNECTION WITH ILLEGAL FISHING
Foyle Fisheries Commission v. Timoney
Together with another defendant, the appellant in this case ([1978]
N. I. 178) pleaded guilty to having in their possession near the banks of
a river three nets, the use
of
which for the purpose of taking salmon or
trout
or other fish was unlawful, being contrary to s.39(1) of the Foyle
Fisheries Act ( N.J.) 1952. The magistrate imposed a fine and ordered
the forfeiture
of
the vehicle in which the nets were being carried. In so
doing, he held that he had no option, in view of the provisions
of
s.75
of
the Act to the effect
that,
on conviction of "an offence against this
Act",
"any
fishing engine or thing" by means of which
"the
offence" is
committed shall stand forfeited. On a case being stated for the opinion
of the Court of Appeal, it was submitted that the mandatory provisions
of s. 75 had been modified by a new s. 51A(3) introduced in 1962 and
amended in 1968, which provided that
"if
an offence under this section
is committed in respect of a vehicle", s.75 shall not apply, but the court
may make an order for the forfeiture of the vehicle. Counsel argued
that the facts brought the case within s.51, so that s.75 was ousted and
the confiscation of the vehicle was not automatic. He further argued
that,
since the appellant was not prosecuted under s.51 (although he
could have been), the discretionary power of forfeiture granted by that
section did not apply, either. He claimed that each section had the
effect of defeating the other, in his case, so that forfeiture could not be
ordered under either section.
The Crown's submission was that the conferring of a judicial
discretion to order forfeiture by s.51 was limited to a case in which the
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