Liability, Criminal, Evidence
In the present appeal, the opinion of the High Court is sought on the following question: Was the learned District Judge correct in her determination that an offence contrary to Regulation 4(3) of the European Communities (Conservation of Wild Birds)(Owenduff/Nephin SPA004098) Regulations 2005 (S.I. No. 715 of 2005) is not one of strict liability? A number of sheep and lambs, belonging to the two respondents had been observed grazing by a Conservation Ranger on the lands that were part of a Special Protection Area covered by the 2005 Regulations. The function of the 2005 Regulations was to prohibit overgrazing and limit certain other activities, unless the prior consent of the appellant was obtained, in Special Protection Areas; but no such consent had been obtained by the respondents in respect of the activities of their animals in the present case. On the 10th April, 2008, the District Judge decided, on the basis of the case-law and the relevant legislative provisions, that the presumption in favour of a mens rea element to the criminal offence had not been rebutted. She went on to conclude that since no evidence of intention had been adduced by the prosecution, the Court could only dismiss the charges against the respondents. Though a significant presumption exists, in respect of all criminal offences supported by penal sanction, that an element of mens rea must be shown before a conviction may be secured, the presumption of a mens rea element can, however, be rebutted to varying extents. The Court is therefore obliged to entertain a number of different considerations in assessing whether the presumption of a regular mens rea element has been rebutted and to what extent. In Reilly v. Patwell [2008] IEHC 446, McCarthy J. engaged in a comprehensive analysis of the jurisprudence on this point and set out the following non-exhaustive list of relevant factors:-1. The moral gravity of the offence; 2. The social stigma attached to the offence; 3. The penalty; 4. The ease (or difficulty) with which a duty is discharged or the law obeyed; 5. Whether or not absolute liability would encourage obedience; 6. The ease or difficulty with which the law might be enforced; 7. The social consequences of non-compliance; and 8. The desideratum to be achieved when considering the statutes. Applying these principles to the present case, it seems clear that the offence under Regulation 4(3) of the 2005 Regulations must be one of strict liability. While the moral gravity of the offence in question, and the social stigma attached thereto, might not be as severe as certain other offences on the criminal calendar, the relevant provisions undoubtedly perform an important regulatory function. The prohibition or limitation of grazing on Special Protection Areas is an important aspect of the State’s obligations under the environmental laws of the European Union. There is a pressing social and political interest in ensuring that legislative measures adopted in furtherance of these obligations are rigorously adhered to. Were a mens rea element to be read into the provisions of the 2005 Regulations, they would be impossible to enforce, due to the profound difficulty in demonstrating beyond reasonable doubt a conscious intention, or even subjective recklessness, on the part of a farmer in respect of the grazing activities of his livestock. The offence created by Regulation 4(3) of the 2005 Regulations is one of strict liability, and the learned District Judge was incorrect in finding that a mens rea element needed to be proven.