Schedule 2 – Forfeiture under section 46 or 47
Application of the Schedule
193.Paragraph 1 of schedule 2 defines the circumstances under which the provisions of schedule 2 are to apply. These are that property is being retained by the Scottish Ministers having been previously lawfully seized by a British sea-fishery officer, and that the property is liable for forfeiture under section 46 or section 47 of the Act. In addition it also requires that either no proceedings are being taken against anyone in relation to the property, that any fixed penalty notice issued in respect of any relevant offence has been paid, or that relevant court proceedings have concluded without the property in question being forfeited.
Notice of intended forfeiture
194.Paragraph 2 of schedule 2 describes those to whom the Scottish Ministers must give a notice of intended forfeiture and prescribes what such a notice must contain. Where property has been seized following an inspection conducted under section 39 of the Act, and the Scottish Ministers have taken reasonable steps to identify the owner, the requirement to give notice is modified to one of taking steps to bring the contents of the notice to the attention of persons who are likely to be interested in it.
195.Paragraph 2(4) of schedule 2 limits the ability to forfeit property under schedule 2 to circumstances where the requirement to give notice of intended forfeiture have been complied with or it was not reasonably practical for this to be complied with.
Notice of claim
196.Paragraph 3 of schedule 2 requires anyone who wishes to dispute that their property should be forfeited to serve a notice on the Scottish Ministers. It places a time constraint of such a notice being within one month from when either the Scottish Ministers gave notice of their intention to forfeit property or, where no notice is given, within one month of the seizure of the property.
Automatic forfeiture in a case where no claim is made
197.Paragraph 4 of schedule 2 provides that where no notice of claim is given to the Scottish Ministers within one month of notice of forfeiture having been given, or where the name or address of the claimant is not specified in the notice of claim, then the property is automatically forfeited.
Decision whether to apply for order forfeiting property
198.Paragraph 5 of schedule 2 makes provision that where a notice of claim is given to the Scottish Ministers, they must decide whether they wish to make a forfeiture application to a sheriff to pursue the forfeiture of the property.
Return of property if no application made to the sheriff
199.Under paragraph 6 of schedule 2, where a notice of claim has been given to the Scottish Ministers and they decide not to make an application for forfeiture to a sheriff, they must return the property to whomever they believe to be the owner.
Forfeiture applications
200.Paragraph 7 of schedule 2 provides that where the Scottish Ministers have made an application for forfeiture to a sheriff and the sheriff is satisfied that the property is liable for forfeiture under sections 46 or 47, the sheriff must order the forfeiture of the property, or its return to the owner where the sheriff is not so satisfied.
Appeal against sheriff’s decision on forfeiture application
201.Paragraph 8 of schedule 2 makes provision for either the Scottish Ministers or the property owner to appeal the sheriff’s decision under paragraph 7 of schedule 2 by applying to the sheriff principal. The Scottish Ministers are required to keep any property during the time required for any appeal.
Effect of forfeiture
202.Paragraph 9 of schedule 2 specifies that the effective timing of any decision under the schedule to forfeit property is to be construed as the time the property was seized.
Disposal of property which is not returned
203.Paragraph 10 of schedule 2 provides that the Scottish Ministers may dispose of property that ought to be returned to its owner after a 3 month period has elapsed and they have not been successful in their attempt to return the property. The Scottish Ministers may dispose of the property in any manner they see fit providing it is not practicable to dispose of it by simply returning it immediately to the owner. This would apply if, for example, the owner of the property was untraceable or did not respond to enquiries.
Provisions as to proof
204.Paragraph 11 of schedule 2 provides that the matters regarding the seizure of property set out in the application for forfeiture under paragraph 7 of schedule 2 are to taken as fact unless they are disputed and that where a sheriff grants an order of forfeiture, the production of that order or a certified copy are to be considered sufficient evidence of the forfeiture decision.
Power to destroy fish before forfeiture
205.Paragraph 12 of schedule 2 allows the Scottish Ministers to destroy fish before they are formally forfeited under section 47 of the Act. This is essentially a practical consideration where officers encounter fish which are below minimum reference sizes for their retention, landing, storage, or offering for sale. Such under-sized fish cannot be sold and, as they will almost certainly be dead, cannot simply be returned to the sea. Paragraph 12(2) of schedule 2 makes provision for a sheriff to order the Scottish Ministers to pay compensation where the sheriff decides in response to an application for forfeiture under paragraph 7 of schedule 2 that the fish should not be forfeited. This may be, for example, where the sheriff was not satisfied that the fish in question were below the legal minimum reference size set. The value of any compensation is to be determined by the likely value such fish would have fetched had they been sold at the nearest fish auction market to the place where they were seized.
Power to return shellfish to the sea before forfeiture
206.Paragraph 13 of schedule 2 provides that shellfish which may be liable for forfeiture under section 47 may be returned to the sea to continue to grow and mature even when such shellfish have not yet been forfeited under schedule 2 or ordered forfeit by a sheriff in response to an application made under paragraph 7 of schedule 2. This allows for the likely contingency that shellfish found below any minimum reference sizes may still be alive and could continue to grown and continue to contribute to the biomass of the species if they were returned immediately to the sea. Paragraph 12(2)-(5) of schedule 2, which makes provision for a sheriff to order the Scottish Ministers to pay compensation, also applies to shellfish.