Scottish Statutory Instruments
SEA FISHERIES
Made
21st March 2001
Laid before the Scottish Parliament
22nd March 2001
Coming into force
25th April 2001
The Scottish Ministers, in exercise of the powers conferred by section 30(2) of the Fisheries Act 1981(1), and of all other powers enabling them in that behalf, hereby make the following Order:
1. This Order may be cited as the Sea Fishing (Enforcement of Community Quota and Third Country Fishing Measures) (Scotland) Order 2001 and shall come into force on 25th April 2001.
2.—(1) In this Order, unless the context otherwise requires–
“the Council Regulation” means Council Regulation (EC) No. 2848/2000(2) fixing, for 2001 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where limitations in catch are required;
“Community quota measure” means a provision of the Council Regulation specified in column 1 of Schedule 1 as read with any qualifying words relating to the provision in that column and, in the case of Article 8 and paragraph 2 of Annex IV of the Council Regulation, with article 3 of this Order;
“Community third country fishing measure” means a provision of the Council Regulation specified in column 1 of Schedule 2;
“fishery product” includes fish;
“ICES” followed by a roman numeral with or without a letter shall be construed as a reference to whichever of the statistical sub-areas and divisions of the International Council for the Exploration of the Sea(3) described in the Schedule is identified therein by that roman numeral or that roman numeral and letter as the case may be;
“Regulation 2847/93” means Council Regulation (EEC) No. 2847/93 establishing a control system applicable to the common fisheries policy(4);
“relevant offence” means, an offence under–
article 4; or
any provision extending to any other part of the United Kingdom made for the purposes of implementing a Community quota measure or a Community third country fishing measure, being a provision in respect of which, by virtue of section 30(2A)(5) of the Fisheries Act 1981, proceedings may be commenced in any place in the United Kingdom;
“Scottish fishing boat” means a fishing vessel which is registered in the register maintained under section 8 of the Merchant Shipping Act 1995(6) and whose entry in the register specifies a port in Scotland as the port to which the vessel is to be treated as belonging; and
“Scottish zone” has the same meaning as in section 126(1) of the Scotland Act 1998(7).
(2) In this Order, any reference to a logbook, declaration or document includes, in addition to a logbook, declaration or document in writing–
(a)any map, plan, graph or drawing;
(b)any photograph;
(c)any data, however reproduced, communicated via a satellite based vessel monitoring system established under Article 3.1 of Regulation 2847/93;
(d)any disk, tape, sound track or other device on which sounds or other data (not being visual aids) are recorded so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and
(e)any film (including microfilm), negative, tape, disk or other device on which one or more visual images are recorded so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom.
(3) Unless the context otherwise requires, any reference in this Order–
(a)to a numbered article is a reference to the article so numbered in this Order;
(b)to a numbered paragraph is a reference to the paragraph so numbered in the article in which it appears in this Order;
(c)to a numbered Schedule is a reference to the Schedule to this Order so numbered; and
(d)to a numbered Article or Annex is a reference to the Article or Annex so numbered in the Council Regulation.
(4) Column 2 of Schedule 1 (which provides in relation to each Community quota measure an indication of the subject matter of the measure) shall not be read as limiting the scope of any Community quota measure and shall be disregarded in relation to any question arising as to the construction of this Order.
(5) Column 2 of Schedule 2 (which provides in relation to each Community third country fishing measure an indication of the subject matter of the measure) shall not be read as limiting the scope of any Community third country fishing measure and shall be disregarded in relation to any question arising as to the construction of this Order.
3.—(1) For the purpose of the prohibitions set out in paragraph 2 of Annex IV to the Council Regulation, the harbours in Scotland at which a fishing boat may land catches of fish containing unsorted herring are, subject to paragraph (5), those harbours mentioned in paragraph (2).
(2) The harbours referred to in paragraph (1) are Aberdeen and Lerwick.
(3) The master of a fishing boat with a catch of fish containing unsorted herring may, before landing, apply to a British sea fishery officer at any harbour in Scotland, other than a harbour mentioned in paragraph (2), for a decision as to the suitability of the harbour for landing of the catch.
(4) On receipt of an application under paragraph (3), the British sea-fishery officer shall decide whether the sampling systems at the harbour are adequate for the purposes of monitoring effectively the landing of the catch having regard to the overall size and characteristics of the catch and shall notify the decision of that officer to the master.
(5) Where a British sea-fishery officer notifies the master in accordance with paragraph (4) that the systems at a harbour are adequate for the purposes mentioned in that paragraph, the harbours in Scotland at which the catch may be landed shall include that harbour in addition to those mentioned in paragraph (2).
4.—(1) Where there is, in respect of–
(a)any Scottish fishing boat wherever it may be; or
(b)any other fishing boat within the Scottish zone,
a contravention of, or failure to comply with, any Community quota measure, the master, the owner and the charterer (if any) shall each be guilty of an offence.
(2) Where there is, in respect of any fishing boat within the Scottish zone, a contravention of, or failure to comply with, any Community third country fishing measure, the master, the owner and the charterer (if any) shall each be guilty of an offence.
(3) Nothing in this Order shall be taken to constitute an offence to land, from a Scottish fishing boat, a catch containing unsorted herring at a harbour outwith Scotland where sampling programmes mentioned in paragraph 2 of Annex IV to the Council Regulation are in place.
5.—(1) A person guilty of an offence under article 4(1), or under any equivalent provision extending to any other part of the United Kingdom, proceedings in respect of which were brought in Scotland by virtue of section 30(2A) of the Fisheries Act 1981, shall be liable–
(a)on summary conviction, to a fine not exceeding the amount specified in column 3 of Schedule 1 in relation to the Community quota measure, the contravention of, or failure to comply with, which founded the offence; and
(b)on conviction on indictment, to a fine.
(2) A person found guilty of an offence under article 4(2), or under any equivalent provision extending to any other part of the United Kingdom, proceedings in respect of which were brought in Scotland by virtue of section 30(2A) of the Fisheries Act 1981, shall be liable–
(a)on summary conviction, to a fine not exceeding the amount specified in column 3 of Schedule 2 in relation to the Community third country fishing measure, the contravention of, or failure to comply with, which founded the offence; and
(b)on conviction on indictment, to a fine.
6.—(1) Without prejudice to the provisions of section 221 of the Criminal Procedure (Scotland) Act 1995(8), where a court has imposed a fine on any person in respect of a relevant offence or an offence under article 11, that court may for the purposes of recovering the fine–
(a)order any boat involved in the commission of the offence and its gear and catch to be detained for a period not exceeding three months from the date–
(i)of the conviction or until the fine is paid;
(ii)the order is renewed for a further period (not exceeding three months); or
(iii)on which a warrant is issued under sub paragraph (b) below,
whichever first occurs; or
(b)subject to paragraph (2), at any time after the imposition of the fine, issue a warrant for the arrestment and sale of any such boat, its gear and catch.
(2) The court shall not issue a warrant under paragraph (1)(b) without first affording the owner of the boat, gear or catch liable to be included in the warrant an opportunity to be heard on the issue of such warrant.
(3) A warrant issued under paragraph (1)(b), whatever the amount of the fine imposed, may be executed in the same manner as if the proceedings were on an extract decree of the sheriff in a summary cause.
(4) Where in relation to a fine in respect of a relevant offence a transfer of fine order under section 222 of the Criminal Procedure (Scotland) Act 1995, section 90 of the Magistrates' Courts Act 1980(9) or article 95 of the Magistrates' Courts (Northern Ireland) Order 1981(10) specifies a court of summary jurisdiction in Scotland, this article shall apply as if the fine were a fine imposed by that court.
7.—(1) For the purposes of enforcement of article 4(1), or any provision extending to any other part of the United Kingdom made for the purposes of implementing a Community quota measure, a British sea fishery officer may exercise, in relation to–
(a)any Scottish fishing boat wherever it may be; or
(b)any other fishing boat within the Scottish zone,
the powers conferred by paragraphs (3) to (5).
(2) For the purposes of enforcement of article 4(2), or any provision extending to any other part of the United Kingdom made for the purposes of implementing a Community third country fishing measure, a British sea fishery officer may exercise the powers conferred by paragraphs (3) to (5) in relation to any fishing boat within the Scottish zone.
(3) A British sea fishery officer may go on board the boat, with or without persons assigned to assist in the duties of that officer, and may require the boat to stop and do anything else which will facilitate either the boarding of, or the disembarkation from, the boat.
(4) A British sea fishery officer may require the attendance of the master and other persons on board the boat and may make any examination and inquiry which appears to that officer to be necessary for the purposes of enforcement referred to in paragraphs (1) or (2) and, in particular may–
(a)search for fishery products or fishing gear on the boat and may examine any such products on the boat and the equipment of the boat, including the fishing gear and require persons on board the boat to do anything which appears to that officer to be necessary for facilitating the examination;
(b)require any person on board the boat to produce any document relating to the boat, to any fishing operations ancillary thereto or to the persons on board which is in the custody or possession of that person;
(c)for the purpose of ascertaining whether a relevant offence has been committed, search the boat for any such document and may require any person on board the boat to do anything which appears to that officer to be necessary for facilitating the search;
(d)inspect, take copies of and retain in the possession of that officer while any search, examination or inspection provided for under this article is being carried out, any such document produced that officer to or found on board;
(e)require the master or any person for the time being in charge of the boat to render all such documents on a computer system into visible and legible form and to produce them in a form in which they may be taken away; and
(f)where the boat is one in relation to which that officer has reason to suspect that a relevant offence has been committed, seize and detain any such document produced that officer to or found on board, for the purpose of enabling the document to be used as evidence in proceedings for the offence,
but nothing in sub paragraph (f) above shall permit any document required by law to be carried on board the boat to be seized and detained except while the boat is detained in a port.
(5) Where it appears to a British sea fishery officer that a relevant offence has at any time been committed, that officer may–
(a)require the master of the boat in relation to which the offence took place to take, or that officer may take, the boat and its crew to the port which appears to that officer to be the nearest convenient port; and
(b)detain or require the master to detain the boat in the port,
and where such an officer detains or requires the detention of a boat that officer shall serve notice in writing on the master stating that the boat will be or is required to be detained until the notice is withdrawn by the service on the master of a further notice in writing signed by a British sea fishery officer.
8.—(1) For the purpose of enforcing the provisions of article 4(1) or (3), or any provision extending to any other part of the United Kingdom made for the purposes of implementing a Community quota measure or Community third country fishing measure, any British sea fishery officer may–
(a)enter and inspect at any reasonable time any premises used for carrying on any business in connection with the operation of fishing boats or activities connected therewith or ancillary thereto or with the treatment, storage or sale of fishery products;
(b)take with that officer such other persons as appear to that officer to be necessary and any equipment or materials;
(c)examine any fishery product on the premises and require persons on the premises to do anything which appears to that officer to be necessary for facilitating the examination;
(d)carry out at such premises such other inspections or tests as may reasonably be necessary;
(e)require any person not to remove or cause to be removed any fishery product from such premises for such a period as may be reasonably necessary for the purposes of establishing whether a relevant offence has at any time been committed;
(f)require any person on the premises to produce any documents which are in the custody or possession of that person relating to the catching, landing, transportation, transhipment, sale or disposal of any fishery product;
(g)for the purpose of ascertaining whether any person on the premises has committed a relevant offence, search the premises for any such document and may require any person on the premises to do anything which appears to that officer to be necessary for facilitating the search;
(h)inspect and take copies of any such document produced or found on the premises;
(i)require any appropriate or responsible person to render any such documents on a computer system into a visible and legible form and to produce them in a form in which they may be taken away; and
(j)if that officer has reason to suspect that a relevant offence has been committed, seize and detain any such document produced or found on the premises, for the purposes of enabling the document to be used as evidence in proceedings for the offence.
(2) The provisions of paragraph (1) shall apply in relation to any land used in connection with any of the activities described in paragraph (1), or in respect of any vehicle which a British sea fishery officer has reasonable cause to believe is being used to transport fisheries products, as they apply in relation to premises and, in the case of a vehicle, shall include power to require the vehicle to stop at any time and, if necessary, direct the vehicle to some other place to facilitate inspection.
(3) If a Sheriff on information on oath–
(a)is satisfied that there is reasonable ground to believe that any documents or other items which a British sea fishery officer has power under this article to inspect are on any premises and that their inspection is likely to disclose evidence of the commission of a relevant offence; and
(b)is also satisfied either–
(i)that admission to the premises has been or is likely to be refused and that notice of intention to apply for a warrant has been given to the occupier; or
(ii)that an application for admission or the giving of such notice would defeat the object of the entry; or
(iii)that the premises are unoccupied or the occupier is temporarily absent and it might defeat the object of the entry to await return of the occupier,
the Sheriff may by signed warrant, and valid for a period of no more than one month, authorise a British sea fishery officer to enter the premises, if need be by using reasonable force, accompanied by such persons as appear to the officer to be necessary.
9.—(1) Any British sea fishery officer may seize–
(a)in Scotland or in the Scottish zone; or
(b)on a Scottish fishing boat wherever it may be,
any fishery product (including any receptacle which contains such product) and any net or other fishing gear to which this article applies.
(2) This article applies to–
(a)any fishery product (including any receptacle which contains such product), in respect of which the officer has reasonable grounds to suspect that a relevant offence has been committed; and
(b)any net or other fishing gear which the officer has reasonable grounds to suspect has been used in the commission of such offence.
10. A British sea fishery or a person assisting by such an officer by virtue of articles 7(3) or 8(1)(b) shall not be liable in any civil or criminal proceedings for anything done in the purported exercise of the powers conferred by articles 7, 8 or 9 if the court is satisfied–
(a)that the act was done in good faith;
(b)that there were reasonable grounds for doing it; and
(c)that it was done with reasonable skill and care.
11.—(1) Any person who–
(a)fails without reasonable excuse to comply with any requirement imposed by a British sea fishery officer under the powers conferred on such officers by articles, 7, 8, or 9;
(b)without reasonable excuse prevents, or attempts to prevent, any other person from complying with such requirement; or
(c)obstructs any such officer in the exercise of any of those powers,
shall be guilty of an offence.
(2) Any person guilty of an offence under paragraph (1) shall be liable–
(a)on summary conviction, to a fine not exceeding the statutory maximum; or
(b)on conviction, on indictment to a fine.
12.—(1) Where an offence under this Order committed by a body corporate or a partnership is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or similar officer of the body corporate, or any person who was purporting to act in any such capacity (or in the case of a partnership, a partner or a person who was purporting to act as such), that person as well as the body corporate or the partnership, as the case may be, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
(2) Where the affairs of a body corporate are managed by its members, the provisions of paragraph (1) above shall apply in relation to the acts and defaults of a member in connection with the member’s functions of management as if the member were a director of the body corporate.
13.—(1) Any–
(a)logbook kept under Articles 6, 17.2 or 28c;
(b)declaration submitted under Articles 8.1, 11, 12, 17.2 or 28f;
(c)effort reported completed under Articles 19b and 19c;
(d)document drawn up under Article 9 or 13; or
(e)document containing required information received by a fisheries monitoring centre established under Article 3.7,
of Regulation 2847/93 shall, in any proceedings for an offence under article 4(1), or any equivalent provision extending to any other part of the United Kingdom made for the purposes of implementing a Community quota measure, be received in evidence without being produced or sworn to by any witness and shall, unless the contrary is shown, be conclusive evidence as to the matters stated therein.
(2) For the purposes of paragraph (1), “required information” shall mean data relating to–
(a)a fishing boat’s identification;
(b)the most recent geographical position of the fishing boat expressed in degrees and minutes of longitude and latitude; and
(c)the date and time of the fixing of that position,
as communicated via a satellite based vessel monitoring system established under Article 3.1 of Regulation 2847/93.
(3) Any logbook, declaration, report or other document kept on board or held in pursuance of Article 14 of the Council Regulation shall, in any proceedings for an offence under article 4(2), or under any equivalent provision extending to any other part of the United Kingdom, proceedings in respect of which were brought in Scotland by virtue of section 30(2A) of the Fisheries Act 1981(11), be received in evidence without being produced or sworn to by any witness and shall, unless the contrary is shown, be conclusive evidence as to the matters stated therein.
14.—(1) Subject to paragraph (2) below, the Sea Fishing (Enforcement of Community Quota and Third Country Fishing Measures) (Scotland) Order 2000(12) (“the 2000 Order”) is hereby revoked.
(2) The 2000 Order shall continue to apply for the purposes of the legal process of such charges as may be brought in relation to a relevant offence (within the meaning of the 2000 Order) or under article 11 of the 2000 Order.
RHONA BRANKIN
Authorised to sign by the Scottish Ministers
St Andrew’s House,
Edinburgh
21st March 2001
Articles 2(1) and (4) and 5(1)
| Column 1 | Column 2 | Column 3 |
|---|---|---|
| Provision of the Council Regulation | Subject matter | Maximum fine on summary conviction |
1. Article 6.1, in so far as that paragraph relates to retaining on board or landed | Prohibitions on retaining on board or landing catches from stocks for which total allowable catches or quotas are fixed and have been exhausted. | £50,000 |
2. Article 6.1, in so far as that paragraph relates to catch composition or sorting | Prohibitions in certain circumstances on retaining on board or landing catches having a certain composition or which have not been sorted. | The statutory maximum |
3. Article 6.2 | Prohibition on landing catches which are unsorted and contain herring when the catch limitations set out in Annex II have been exhausted. | £50,000 |
4. Article 7 | Prohibition of fishing by Community vessels in certain Norwegian and Icelandic waters. | £50,000 |
5. Article 8 and Annex IV, paragraphs 2 and 6 | Prohibition on offering for sale for human consumption herring caught in the areas specified in Annex IV paragraph 6 by vessels carrying towed nets of a minimum mesh size less than 32mm and landed. | The statutory maximum |
6. Article 9 and Annex V, paragraphs 3, 4, 6 and 7 | Prohibition on fishing in the Bornholm Deep from 15th May to 31st August 2001. | (a)in the case of the prohibition on fishing in the Bornholm Deep £50,000; and |
| Minimum mesh size of 90mm applied to fishing for sole in ICES Divisions IVc and VIId. | (b)in any other case, the statutory maximum. | |
| Requirements as to mesh sizes and by catches in the Skagerrak and Kattegat. | ||
| Minimum landing size of 27cm for plaice. | ||
7. Annex 1c, in so far as it relates to special conditions applicable to fishing with towed gear of a mesh size of less than 54mm or with purse seines | Prohibition on Fishing in ICES Division IIa (EC waters) with towed gear of a mesh size of less than 54mm or with purse seines between 1st July and 31st December 2001. | £5,000 |
Articles 2(1) and (5) and 5(2)
| Column 1 | Column 2 | Column 3 |
|---|---|---|
| Provision of the Council Regulation | Subject matter | Maximum fine on summary conviction |
1. Article 10 | Requirement in relation to vessels flying the flag of Norway or the Faroe Islands to fish within the quota limits contained in Annex I and within the geographical zone set out in Article 11(i). | £50,000 |
2. Article 13.1 | Requirement in relation to vessels flying the flag of Norway (other than those of less than 200 GT) or the Faroe Islands to hold licence and special fishing permit and observance of conditions thereof. | £50,000 |
3. Article 14.1 | Requirement in relation to vessels flying the flag of Norway or the Faroe Islands to comply with the conservation and control measures and all other provisions governing fishing by Community vessels in the zones concerned, including those measures and provisions referred to in Article 14.1. | £50,000 |
4. Article 14.3 | Requirement in relation to vessels flying the flag of Norway or the Faroe Islands to keep a logbook in compliance with Annex VII. | £50,000 |
5. Article 14.4 | Requirement in relation to vessels flying the flag of Norway (other than those fishing in ICES division IIIa) or the Faroe Islands to transmit information in compliance with Annex VIII. | The statutory maximum |
(This note is not part of the Order)
This Order makes provision for the enforcement of certain enforceable Community restrictions and other obligations relating to sea fishing by Community vessels and third country vessels set out in Council Regulation (EC) No. 2848/2000, (O.J. No. L 334, 30.12.2000, p.1) (“the Council Regulation”). The Council Regulation fixes total allowable catches and the quotas of Member States for 2001 and lays down certain conditions under which they may be fished (“Community quota measures”). It also authorises fishing by vessels of Norway and the Faroe Islands for specified descriptions of fish in certain specified areas within the fishery limits of Member States in 2001 and imposes requirements concerning fishing quotas and authorised zones, methods of fishing, the holding of licences and observance of licence conditions, the keeping of logbooks, the making of reports and similar matters (“Community third country fishing measures”). The Order forms part of the law of Scotland only.
The Order makes provision for the purposes of Article 8 of and Annex IV, paragraph 2 to the Council Regulation (prohibition of landing of catches of unsorted herring at harbours where adequate sampling systems are not in place) as to the harbours in Scotland at which such catches may be landed (article 3).
The Order creates offences in respect of breaches of the provisions of the Council Regulation referred to in column 1 (and briefly described in column 2) of Schedules 1 (Community quota measures) and 2 (Community third country fishing measures) to the Order (article 4).
The Order provides penalties in relation to an offence under article 4 of the Order or any equivalent provision extending to any other part of the United Kingdom proceedings in respect of which were brought in Scotland by virtue of section 30(2A) of the Fisheries Act 1981 (c. 29) (article 5).
The Order makes provision in relation to the recovery of fines imposed in respect of such offences or an offence under article 11 (obstruction of officers) (article 6).
The Order confers on British sea-fishery officers powers of enforcement in relation to fishing boats and on land. These include power to enter premises, to go on board fishing boats, to stop and search vehicles transporting fish, to examine fish, to require the production of documents, to search for and seize documents, to take a boat to the nearest convenient port and to seize fish and fishing gear (articles 7, 8 and 9).
Provision is also made in relation to the liability of officers for anything done in the purported exercise of powers conferred by the Order (article 10). The Order creates offences and provides penalties in respect of the obstruction of a British sea fishery officer and makes provision in relation to offences committed by bodies corporate and Scottish partnerships and the admissibility of certain documents (articles 11, 12 and 13).
1981 c. 29; relevant modifications are contained in the Scotland Act 1998 (Functions Exercisable in or as Regards Scotland) Order 1999 (S.I. 1999/1748), article 5 and the Scotland Act 1998 (Modification of Functions) Order 1999 (S.I. 1999/1756), articles 3, 5 and 6. The functions of the Secretary of State were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998 (c. 46). See section 30(3) of the 1981 Act for definitions of “enforceable Community restriction”, “enforceable Community obligation”and “the Ministers”. Section 30 has effect in relation to Scotland as modified by section 30(5) inserted by the Scotland Act (Consequential Modifications) (No. 2) Order 1999 (S.I. 1999/1820), Schedule 2, paragraph 68(5)(b).
O.J. No. L 334, 30.12.2000, p.1.
Cmnd. 2586.
O.J. No. L 261, 20.10.93, p.1, as amended by Council Regulation (EC) 2870/95 (O.J. No. L 301, 14.12.95 p.1), Council Decision (EC) 95/524 (O.J. No. L 301 14.12.95, p.35), Council Regulation (EC) 686/97 (O.J. No. L 102 19.4.97, p.1), Commission Regulation (EC) 1489/97 (O.J. No. L 202 30.7.97, p.18), Council Regulation (EC) 2205/97 (O.J. No. L 304 7.11.97, p.1), Council Regulation (EC) 2635/97 (O.J. No. L 356 31.12.97 p.14) and Council Regulation (EC) 2846/98 (O.J. No. L 358 31.12.98, p.5).
1981 c. 29; section 30(2A) was inserted by S.I. 1999/1820.
1998 c. 46. The sea within British fishing limits (that is, the limits set by or under section 1 of the Fishery Limits Act 1976 (c. 86)) which is adjacent to Scotland is determined by the Scottish Adjacent Waters Boundaries Order 1999 (S.I. 1999/1126).
1981 c. 29; section 30(2A) was inserted by S.I. 1999/1820.