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Aquaculture and Fisheries (Scotland) Act 2013

Retention and disposal of property seized by BSFOs

Section 43 – Retention of property seized by British sea-fishery officers

127.Section 43 provides the Scottish Ministers with the power to retain property seized in the Scottish enforcement area or on board a Scottish fishing vessel, by British sea-fishery officers (BSFOs) using powers other than those contained within section 39.

128.Section 43(2) requires BSFOs to deliver seized property to the Scottish Ministers as soon as is reasonably practicable. Section 43(4) allows Scottish Ministers to retain said property. In accordance with paragraph 13 of schedule 2, in circumstances where the property is live shellfish, BSFOs may, however, return such animals to the sea to mature, without first delivering them to Scottish Ministers.

129.Section 43(5) requires Scottish Ministers, in certain circumstances, to release seized property and make it available for collection as soon as is practicable. Release of property is required when a procurator fiscal takes no proceedings in respect of an offence where the property was seized, where a fixed penalty notice has been paid in respect of the offence, and for proceedings which have been concluded without the property being subject to any order for forfeiture.

130.The grounds for release of property under sections 43(5) and 43(6) do not apply to property if it is liable to be forfeited under section 46 or 47.

Section 44 – Power of Scottish Ministers to sell seized fish in their possession

131.Section 44 gives the Scottish Ministers the power to sell any fish that has been seized by BSFOs and retained by them under section 43. Section 44(3) permits Scottish Ministers to retain the proceeds. These proceeds are to be retained by Ministers until the courts orders forfeiture of the proceeds and, in the absence of the courts making such an order, the Scottish Ministers are required under section 44(5) to return proceeds to owners as soon as is practicable. Return of the funds held is also necessary under section 44(4) if no court proceedings are taken or any fixed penalty notice issued is paid.

132.If the Scottish Ministers have retained the proceeds of any sale for a period of six months (because they have been unable to return the funds to the original owner(s) of the fish) then section 44(6) allows such funds to be retained by Scottish Ministers and used as they see fit. However, the Scottish Ministers can only dispose of such funds in this way where it was not practicable at the time they exercised the power of disposal to immediately return the funds to the original owner.

133.Section 44(8) requires that fish sold by the Scottish Ministers must be sold at auction and under section 44(9) the owner’s views must be taken into account on the manner in which the fish should be sold. Owners may ask for fish to be sold at a particular auction or by a method of sale other than auction. The Scottish Ministers are required by virtue of section 44(11) to take such views into account unless they deem them to be unreasonable.

134.Section 44(12) permits the deduction by the Scottish Ministers of reasonable selling expenses from the proceeds of the sale.

Section 45 – Disposal of property retained by Scottish Ministers under section 43

135.Section 45 sets out the process to be followed for the disposal of property retained by the Scottish Ministers under section 43. Section 45(2) defines a notice of collection and section 45(3) 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, then the Scottish Ministers should seek to serve a notice of collection on an appropriate person as defined in section 45(6), or on any person likely to be interested in the object. Having complied with the requirements on a notice of collection, the Scottish Ministers may dispose of the object as they see fit at the end of a three-month period from the date of service of the notice if it is not claimed.

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Text created by the Scottish Government to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Acts of the Scottish Parliament except those which result from Budget Bills.


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