The Sea Fishing (Illegal, Unreported and Unregulated Fishing) (Scotland) Order 2013

This Order may be cited as the Sea Fishing (Illegal, Unreported and Unregulated Fishing) (Scotland) Order 2013 and comes into force on 29th June 2013.

Subject to paragraph (2A), this Order extends to Scotland and the Scottish zone only.

So far as this Order extends beyond Scotland and the Scottish zone, it does so only as a matter of Scots law.

Nothing in paragraph (2) is to be treated as prejudicing the effect of section 30(2A) of the Fisheries Act 19816 in the rest of the United Kingdom in relation to, or for the purposes incidental to, any provision which creates an offence.

In paragraph (4)(a), a “Scottish fishing boat” means a fishing vessel which is registered in the register maintained under section 8 of the Merchant Shipping Act 19957, and whose entry in the register specifies a port in Scotland as the port to which the vessel is to be treated as belonging.

In this Order—

• “authorised officer” means a person authorised in writing by a local authority or the Scottish Ministers for the purposes of this Order;

• “British sea-fishery officer” has the same meaning as in section 7 of the Sea Fisheries Act 19688;

• “Commission Regulation” means Commission Regulation (EC) No 1010/2009 laying down detailed rules for the implementation of Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing;

• “the Commissioners” means the Commissioners for Her Majesty’s Revenue and Customs;

• “controlled consignment” means a consignment prohibited from movement under article 4;

• “Council Regulation” means Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing, amending Regulations (EEC) No 2847/93, (EC) No 1936/2001 and (EC) No 601/2004 and repealing Regulations (EC) No 1093/94 and (EC) No 1447/1999;

• “Council Regulation 1224/2009” means Council Regulation (EC) No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006;

• “equivalent provision” means any provision in any other Order extending to any part of the United Kingdom which has equivalent effect to a provision in this Order, proceedings in respect of which may be taken in Scotland by virtue of section 30(2A) of the Fisheries Act 1981;

• F4...

• “fishery products” are those products described in Article 2(8) of the Council Regulation with the exception of the products listed in Annex I of that Regulation;

• “fishing logbook” has the same meaning as in Articles 14 and 15 of Council Regulation 1224/2009 and for the purposes of this Order any reference to a fishing logbook, declaration or document includes, in addition to a fishing logbook, declaration or document in writing, any related—

  1. a

     map, plan, graph or drawing;

  2. b

     photograph;

  3. c

     data, however reproduced, communicated via a satellite-based vessel monitoring system established under Article 9 of Council Regulation 1224/2009;

  4. d

     data, however reproduced, communicated to a fisheries monitoring centre established under Article 9(7) of Council Regulation 1224/2009;

  5. e

     disk, tape, sound track or other device on which sounds or other data (not being visual images) are recorded so as to be capable (with or without the aid of some other equipment) of being reproduced; and

  6. f

     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;

• “local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 19949;

• “Scotland” and “the Scottish zone” have the same meanings assigned to those terms by section 126(1) of the Scotland Act 199810; and

• “third country fishing boat” means a fishing boat which is not F5a United Kingdom fishing boat.

• F6“United Kingdom fishing boat” means a fishing vessel which is registered in the United Kingdom under Part 2 of the Merchant Shipping Act 1995;

Expressions used in this Order that appear or are referred to in the Council Regulation or the Commission Regulation, and which are not defined in this article, have the same meaning in this Order as in those Regulations.

Any information provided to any authority for the purposes of any provision of this Order is to be treated as also provided for the purposes of any equivalent provision.

The Scottish Ministers are the competent authority for the purposes of the Council Regulation and the Commission Regulation.

In the case of fishery products imported into Scotland, the local authority is also the competent authority for the purposes of the provisions referred to in paragraph (3).

An authorised officer may prohibit the movement of a consignment of fishery products from the place of import while a verification takes place pursuant to Article 17 of the Council Regulation or Article 20 of the Commission Regulation.

An authorised officer who has prohibited the movement of a consignment must, as soon as possible after the prohibition, give a written notice to the importer or the person who appears to the officer to be in charge of the consignment.

If the person to whom the authorised officer has given a notice under this article does not appear to the officer to be the importer or an agent, contractor or employee of the importer, the authorised officer must take reasonable steps to bring the contents of the notice to the attention of such a person as soon as practicable following the giving of the notice.

A notice served under this article may be revoked under paragraph (5) by service of a further notice signed by an authorised officer.

An authorised officer may give written consent to the movement of a controlled consignment.

Where such consent has been given and the consignment has been moved to the place specified under paragraph (3)(b), the prohibition on movement under article 4 applies to it at such place as it applied at the place of import.

The competent authority must refuse importation or permission to use transhipment facilities where a pre-landing or pre-transhipment declaration has not been submitted in accordance with Article 8 of the Council Regulation and Article 3 of, and Annexes IIIA and IIIB to, the Commission Regulation.

In the event that the competent authority refuses the importation of fishery products pursuant to Article 18(1) or (2) of the Council Regulation, the authorised officer may seize any fishery products, including any receptacle which contains the fishery products.

On cause shown, the sheriff may allow an appeal against a decision mentioned in paragraph (1)(a), (b) or (c) to be made after the period mentioned in paragraph (2)(b) has expired.

The competent authority may be a party to an appeal.

In disposing of the appeal, the sheriff may make such order as to the expenses of the appeal as the sheriff thinks proper.

The decision of the sheriff is final.

Pending the determination of an appeal under this article any fishery product which is seized under article 6(2) must be kept in storage under the control of the competent authority and the cost of the storage must be borne by the importer.

It is an offence for the person in charge of a third country fishing boat to enter port without authorisation under Article 7 of the Council Regulation.

It is an offence for the person in charge of a fishing boat to conduct a transhipment with a third country fishing boat contrary to Article 4(3) of the Council Regulation.

It is an offence for a person to import fishery products without a validated catch certificate in accordance with Article 12 of the Council Regulation.

It is an offence for a person to import fishery products obtained from IUU fishing.

It is an offence for a person to import fishery products caught by a third country fishing boat flying the flag of a non-cooperating third country unless the products are from stock or species to which the listing by the F7Secretary of State under Article 33 of the Council Regulation of the country as a non-cooperating third country does not apply.

It is an offence for a person in charge of a fishing boat to engage in directed fishing for a stock which is subject to a moratorium or for which fishing is prohibited under Article 3(1)(d), as read with F9Article 42(1), of the Council Regulation.

It is an offence for a person in charge of F12a United Kingdom fishing boat to engage in fish processing operations with a boat that is on the F13United Kingdom IUU vessel list.

It is an offence for a person to conduct business directly connected to IUU fishing, within the meaning of Article 42(1)(b) of the Council Regulation.

It is an offence for a person to purchase a third country fishing boat flying the flag of a non-cooperating third country.

It is an offence for a person to reflag a F8United Kingdom fishing boat so that it flies the flag of a non-cooperating third country.

It is an offence for a person in charge of F15a United Kingdom fishing boat to enter into an agreement to purchase fishing quota authorising fishing in a non-cooperating third country.

It is an offence for a person in charge of a fishing boat to participate in joint fishing operations with a boat flying the flag of a non-cooperating third country.

It is an offence for a person to falsify, or use falsified, documents, within the meaning of Article 42(1)(c) of the Council Regulation.

It is an offence for a person, knowing a consignment to be a controlled consignment, to move it or cause it to be moved otherwise than in accordance with the written consent of an authorised officer.

It is an offence for a person to disclose information received from the Commissioners contrary to article 19(3).

In paragraphs (1), (2), (5), (6), (7), (11) and (12), the “person in charge” of a fishing boat means the owner, master, charterer (if any) or agent acting for such owner, master or charterer.

Any person convicted of an offence under article 9(1) to (14), or under an equivalent provision, subject to the following provisions of this article, is liable on summary conviction to a fine not exceeding the value of any fishery product in respect of which the offence was committed.

A person is not liable to a fine under paragraph (4) in respect of such an offence if, under paragraph (3), the court orders the forfeiture of any fishery product in respect of which that offence was committed; and where a fine is imposed under paragraph (4) in respect of any offence, the court does not have power under paragraph (3) to order the forfeiture of any fishery product in respect of which the offence was committed.

Subject to paragraph (5), any fine to which a person is liable under paragraph (4) is in addition to any other penalty (whether pecuniary or otherwise) to which that person is liable in respect of that offence under this article or under an equivalent provision.

The court must 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.

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.

Where in relation to a fine in respect of an offence under this Order or under an equivalent provision, a transfer of fine order under section 222 of the Criminal Procedure (Scotland) Act 199512, section 90 of the Magistrates’ Courts Act 198013 or article 95 of the Magistrates’ Courts (Northern Ireland) Order 198114 specifies a court of summary jurisdiction in Scotland this article shall apply as if the fine were a fine imposed by that court.

For the purpose of enforcing this Order or an equivalent provision, a British sea-fishery officer has the powers set out in this article in relation to any fishing boat to which this Order applies.

A British sea-fishery officer may go on board the boat, with or without persons assigned to assist in that officer’s duties, and may require it to stop and do anything else which will facilitate either the boarding of, or the disembarkation from, the boat.

Nothing in paragraph (3)(f) permits any document required by law to be carried on board the boat to be seized and detained except whilst the boat is detained in port.

A British sea-fishery officer who detains or requires the detention of a boat must serve on the master a written notice stating that the boat is, or is required to be, detained until the notice is withdrawn by the service on the master of a further written notice signed by a British sea-fishery officer.

The provisions of paragraph (1) also 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 fishery products, as they apply in relation to premises and, in the case of a vehicle, include power to require the vehicle to stop at any time and, if necessary, direct the vehicle to some other place to facilitate the inspection.

A sheriff who by information on oath is satisfied that the circumstances in paragraph (2) apply may by signed warrant, valid for a period of no more than one month, authorise a British sea-fishery officer to enter any premises, if necessary using reasonable force, and to take with that officer such persons as appear to be necessary.

In paragraph (1), “officer” has the same meaning as set out in article 16(2).

The Scottish Ministers, the Commissioners or any local authority may exchange information for the purpose of this Order and may divulge information to the enforcement authorities of England, Wales and Northern Ireland for the purposes of this Order or the equivalent provision in those jurisdictions.

Paragraph (1) is without prejudice to any other power of the Scottish Ministers, the Commissioners or the local authority to disclose information.

An authorised officer may, for the purposes of ascertaining whether any offence under this Order or an equivalent provision has been committed, purchase or take a sample of any fishery product.

An authorised officer who considers that the sample should be analysed, examined or tested, must submit it for that purpose to the public analyst for the area in which it was obtained (or, if the office of the public analyst for the area is vacant, to the public analyst for some other area).

In any such proceedings, if a person charged intends to produce a certificate of a public analyst or require, under paragraph (4), the public analyst to be called as a witness, written notice of the intention together with a copy of the certificate (if appropriate) must be given to the other party at least three clear days before the trial.

If such notice is not given, the court may adjourn the proceedings on such terms as it thinks fit.

In this Order, “public analyst” has the same meaning as in section 27 of the Food Safety Act 199015.

Expressions used in this article that appear or are referred to in Council Regulation 1224/2009 have the same meaning in this article as in that Regulation.