An ex-parte application was made in the High Court today (10th March 2014) 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.