The Sea Fishing (Restriction on Days at Sea) (Scotland) Order 2010

Absence from port

4.—(1) A person in charge of a relevant fishing boat is guilty of an offence if that boat is absent from port and within the cod recovery zone whilst carrying on board regulated gear either—

(a) without a fishing authorisation; or

(b) in excess of the number of days or hours allocated to it in contravention of Article 30(1)(a) or (2)(a) of the Control Regulation.

(2) For the purpose of paragraph (1)(b)—

(a) the number of days or hours allocated to a relevant fishing boat is determined by reference to its fishing authorisation; and

(b) in calculating whether a relevant fishing boat has exceeded the number of days or hours allocated to it, no account is taken of any days or hours spent—

(i) transiting the cod recovery zone in accordance with Article 29(1) of the Control Regulation; or

(ii) undertaking non-fishing related activities in the cod recovery zone in accordance with Article 29(2) of the Control Regulation.

(3) For the purposes of paragraphs (1) and (2)(a), a “fishing authorisation” means—

(a) in relation to a Scottish fishing boat, an authorisation issued by the Scottish Ministers which—

(i) specifies the number of days or hours for which a fishing boat may be present within the cod recovery zone whilst carrying specified regulated gear; and

(ii) constitutes a special fishing permit for the purpose of Article 14(2) of Regulation 1342/2008 (as read with Article 5 of Regulation 237/2010); and

(b) in relation to an EU fishing boat, a special fishing permit issued in accordance with Article 14(2) of Regulation 1342/2008 (as read with Article 5 of Regulation 237/2010).

(4) Paragraph (1)(a) does not apply to a person in charge of a relevant fishing boat if that boat is absent from port and transiting the cod recovery zone in accordance with Article 29(1) of the Control Regulation.

(5) It is a defence for a person charged with an offence under paragraph (1)(b) (“the accused”) to prove that—

(a) the excess number of days or hours for which the boat was absent from port and within the cod recovery zone whilst carrying on board regulated gear was equal to, or less than, the number of additional days or hours transferred to it from another relevant fishing boat (“the transferor”); and

(b) if the transfer of days or hours referred to in sub-paragraph (a) was invalid because the transferor was not entitled to transfer the days or hours purportedly transferred, the accused neither knew, nor had reason to suspect, that the transfer was invalid.