Killybegs fish firm acquitted in weighing case amid claims of industry ‘harassment’

A leading Irish fish processing company has been found not guilty - by the direction of a trial judge - of ensuring the accuracy of equipment used to weigh fish at their Killybegs premises.

Sean Ward (Fish Exports) Ltd appeared at Letterkenny Circuit Court where it faced two separate fisheries charges.

After a three day trial, Judge John Aylmer directed a jury to find the accused company not guilty because of a lack of evidence against them.

The decision to take the court case has led to anger from fisheries representatives who claim such cases were now "bordering on harassment" against Irish fishermen merely trying to make a living.

The company faced the charges following an investigation carried out at its premises during an inspection on September 14 and 15, 2015.

The company, based at Roshine Road, Killybegs, fully contested the charges brought by the Sea Fisheries Protection Authority.

The company was charged that on a date unknown in or around September 14, 2015 at Sean Ward (Fish Exports) Ltd, Roshine Road, Killybegs, Co. Donegal, knowingly rendered an instrument inaccurate, namely a Scanvaegt SF4600 weighing scales serial Number BDZ01052.

They were also charged that on a date unknown in or around September 14, 2015 being a registered buyer, auctioneer or other body responsible for the first marketing of fisheries product in the state, failed to ensure the accuracy of the weighing operation of fish on your premises contrary to Article 60(4) of EC Regulation No. 1 1224/2009.

The charges centre around the equipment used to weigh a catch of herring which had landed in Killybegs Harbour and which was being processed at the premises of Sean Ward Ltd on the morning of September 14th.

Evidence from a number of SFPA officers including Lesley McCaffrey McIntyre, Sean Ivory and Kareen Andersson was given to the court based around the incident. Evidence was also given by Brian Faughnan of the National Standards Authority of Ireland in relation to the weighing of the fish.

The court was told that after initially boarding the vessel, SFPO officers 'dipped' the tanks of the vessel as an estimate of the total catch present onboard prior to the vessel commencing discharging its catch.

Officers then proceeded to the factory of Sean Ward Ltd to begin recording the 'flowscales' used in the weighing operation of the catch.

The weighing operation at the factory is covered by CCTV cameras which provided a live feed to the SFPA office at the pier in Killybegs.

At one stage the cameras appeared dirty and SFPA officers returned to the factory to have the cameras cleaned but then detected an implement which they claimed was not a permitted part of the weighing apparatus.

The weighing operation was stopped for the rest of the day and the weighing scales sealed pending further investigation the next day.

On the morning of September 15, 2015, the National Standards Authority of Ireland, the agency responsible for legal metrology attended the site with the purpose of inspecting the weighing scale.

Mr Brian Faughnan, an inspector from the NSAI, began carrying out tests to assess the accuracy of the weighing equipment being used to weigh the fish.

The court heard how Mr Faughnan oversaw a total of nine tests in relation to the equipment.

A quantity of herring was discharged into two bins which were then weighed and the weights recorded and the fish was then passed over the 'flowscale' and a comparative weight taken.

However, Mr Faughnan said he was not satisfied with this initial test, referred to by defence barrister Darren Lehane, SC, as the “dummy” or “mock” test, as the flowscale weighed actually heavier than the reference scale.

Mr Faughnan then told the court he adjusted his testing methodology to use just one bin of fish.

The NSAI officer carried out a further six tests to measure the accuracy of the equipment being used and all tests showed a return within the 2% tolerance allowable for this type of machine.

A further two tests were then carried out, referred to as tests 8 and 9, and these did show the flowscale weighed outside of the permitted tolerance levels.

However, this only happened after SFPA officer Sean Ivory used an implement, either a spanner or his own hand, to exert physical force on the scale.

The state was represented by barrister Ms Fiona Crawford, BL, instructed by Donegal state solicitor, Mr Kieran Dillon while Sean Ward (Fish Exports) Ltd was represented by barristers Darren Lehane, SC, and Joanne Williams, BL, instructed by solicitor Diarmuid Barry.

Mr Darren Lehane SC

On the third day of the trial, an application was made by barrister for the defence, Mr Darren Lehane, SC, seeking a direction in the case.

Replying, Judge Aylmer noted that he had "anticipated" such an application adding that there was simply no evidence on which a jury could convict the accused on either count before the court.

He recalled the jury and told and informed them he was directing them to find the accused company not guilty by direction of the trial judge.

In relation to the costs, barrister Lehane said he will take instructions from his client on the costs issue but confirmed to Judge Aylmer that it was not a legal aid case.

Speaking after the trial, a spokesperson for Sean Ward (Fish Exports) Ltd said they now felt vindicated after what they described as "ten years of sheer hassle, legal stress and nightmares."

Judge John Aylmer

The spokesperson said: "We are glad that our names are fully cleared by the courts and a jury of our peers and we feel vindicated that the company's name is finally cleared after such a prolonged period. We were able to text our workers to say we have a future and we can put this all behind us. This potentially could have destroyed us totally because sustainability is key when you are marketing fish nowadays.

“As a company, we pride ourselves on compliance, we have invested over €700,000 in measures to support sustainable fisheries in the past number of years. Fish processing at present is a struggle from day to day, and our only ambition is to continue to provide much needed employment in South West Donegal.”

Brendan Byrne, CEO of the Irish Fish Processors and Exporters Association (IFPEA), said Ireland operates the highest standards of fish processing with the greatest accuracy of weighing fish within all of the EU.

He said the Government needs to address what he called the "flawed legislation" which gave legal effect to the SFPA, and that the Sea Fisheries and Maritime Jurisdiction Act 2006, along with the Fisheries Penalty Points System, saying they need to be overhauled without delay.

Mr Byrne added "The case, which collapsed on the SFPA, is a sign of an agency that is out of touch and out of control, what we witness once again is bordering on state harassment of an industry by a competent authority that is not subject to any oversight.

"The Irish fishing industry is the most heavily regulated and controlled sector of the economy and we are immensely proud of our compliance with rules, regulations and procedures.

“This case, along with a number of recent cases which were also thrown out under Judicial direction; due to lack of evidence need to be addressed by Government.

“2026 will be the most challenging year for the Irish fishing industries, we still employ over 17,000 people in our coastal and peripheral areas, what we are experiencing from these charges and cases recently against our industry is nothing short of a national scandal.”