Inshore Sea fishing
139.Sections 49 and 50 make amendments to the Inshore Fishing (Scotland) Act 1984 (“the 1984 Act”) and relate specifically to the order making power at section 1 of that Act. Section 1 allows the Scottish Ministers to prohibit, by order, fishing for a specified description of sea fish (or method of fishing) in a specified area. “Sea fish” is defined as meaning any fish found in the sea including shellfish, salmon and migratory trout (section 9). Failure to comply with any order made under section 1 is an offence by virtue of section 4 of the 1984 Act. In addition the 1984 Act confers enforcement powers on BSFOs at sections 5 and 6. Those powers are exercisable in relation to any British fishing boat within British fishery limits and in relation to any vehicle or equipment all for the purposes of enforcing the provisions of any order made under section 1.
Section 49 - Contravention of orders prohibiting inshore sea fishing
140.Section 49 amends the 1984 Act. Section 49(2) adds a new subsection (1B) to section 4 of the 1984 Act (offences). That provides that a person commits an offence where the facts at paragraphs (a) to (c) are proved and it is reasonable to infer from those facts that the person intended to fish in contravention of a prohibition introduced through an order made under section 1 of the 1984 Act
141.Section 49(3) amends the 1984 Act by adding a new section 4A. This creates a presumption that applies in proceedings against a person charged with an offence under section 4(1) of the 1984 Act. The presumption is that the person has fished in contravention of an order made under section 1 of the 1984 Act where certain facts, set out at subsections (2) and (3), are proved and it is reasonable to infer from those facts that the person was, or had been, fishing in contravention of the order. New section 4A(4) of the 1984 Act provides that the presumption will not apply where it can be shown that any evidence raises a doubt regarding certain facts.
Section 50 - Powers of entry
142.Section 50 provides further amendments to the 1984 Act and these concern powers of enforcement. Section 50(2) adds a new section 6A to the 1984 Act which provides a power of entry exercisable by BSFOs in respect of any land except dwellinghouses. The power applies for the purposes of enforcing the provisions of any order made under section 1 of the 1984 Act as well as the provisions of section 3. New section 6A(2) provides that BSFOs may do certain things that are necessary to gain entry in relation to any land. This includes opening lockfast places, and removing any obstacles. New section 6A(3) places a duty on BSFOs that, if requested, they must produce evidence of their identity. New section 6A(4) makes provision for an offence where someone willfully obstructs a BSFO or refuses, or fails to, comply with a request made by a BSFO. A constable may arrest without warrant someone suspected of an offence under subsection (4). New section 6A(9) provides BSFOs with certain protection in civil and criminal proceedings for anything done while exercising the new power of entry providing the court is satisfied that they acted in good faith and had reasonable grounds to exercise the power of entry.
Crown application: Scotland
143.Section 50(3) adds a new section 10A to the 1984 Act which relates to the application of the new section 6A to the Crown. New section 10A(1) applies the new power of entry in section 6A to Crown land. Most of the foreshore around Scotland is owned by the Crown. By virtue of the definition of Crown land in new section 10A(5), Her Majesty’s private estates are exempt from the new power of entry in section 6A and new section 10A(3) exempts the Crown from any criminal liability.
