Inspection and seizure of objects used in commercial sea fishing
Section 39 – Power to inspect and seize objects
123.Section 39(1) confers inspection powers on BSFOs to allow them to examine objects which they have reasonable grounds to suspect may be being used in connection with commercial sea fishing. This could include objects discovered in the sea, or on land on the foreshore, or in the vicinity of ports and harbours. Section 39(2) provides a power to lift an object out of the sea for the purposes of inspecting it. Having inspected the object, the officer may decide to seize it by virtue of the power conferred by section 39(3). By virtue of Section 39(7), this can include any contents or anything attached to the object. If the officer decides not to seize the object then section 39(5) requires the officer to replace the object where it was found or, in circumstances where it is not possible to replace the object, section 39(6) provides for the seizure of the object until the owner can collect it.
Section 40 – Reports of inspections under section 39
124.Section 40 requires a report about the inspection to be completed by the officer who has inspected the object using the powers set out in section 39. Section 40(3) sets out the contents of the report, and where the object is seized the additional information set out in section 40(4) must also be included in the report. Section 40(5) requires a copy of the report to be attached to an object that has not been seized and if the officer cannot attach a copy of the report to the object, section 40(6) requires the officer to make an attempt to provide this report to whoever appears to be the owner of the object. Section 40(8)-(10) sets out the circumstances where the owner of the object should be served a copy of the report. Where the owner of the object cannot readily be identified, section 40(11) substitutes the requirement to serve a copy of the report on the owner of the object with a requirement to take reasonable steps to bring the report to the attention of anyone likely to have an interest in it.
Section 41 – Retention of objects seized under section 39(3)
125.Section 41(1) provides that an object seized under section 39(3) may be retained by the Scottish Ministers. However, if either of the grounds set out in section 41(3) apply, the Scottish Ministers must make the object available for collection. These grounds are that either the procurator fiscal has decided that no proceedings will be taken, or that a relevant fixed penalty notice has been paid, or that court proceedings have concluded without an order of forfeiture being made. The Scottish Ministers are not obliged, however, to make the object available for collection if it is liable for forfeiture as a prohibited item under section 46.
Section 42 – Disposal of objects seized under section 39
126.Section 42 sets out the process which the Scottish Ministers are required to follow when seeking to either return or dispose of an object. Section 42(2)-(5) defines a notice of collection and requires the Scottish Ministers to serve a copy on every person who appears to be an owner of the object or, in the case that an owner cannot be identified, on persons likely to have an interest in the object. Having served a notice of collection under section 42, the Scottish Ministers may dispose of the object as they see fit at the end of a three-month period.
