Scottish Statutory Instrument 2000 No. 53

The Sea Fishing (Enforcement of Community Conservation Measures) (Scotland) Order 2000

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The text of this Internet version of the Scottish Statutory Instrument has been prepared to reflect the text as it was Made. The authoritative version is the Queen's Printer for Scotland copy published by The Stationery Office Limited as the The Sea Fishing (Enforcement of Community Conservation Measures) (Scotland) Order 2000, ISBN 0 11 059287 6, £3.00 sterling. For details of how to obtain an official copy see How to obtain The Stationery Office Limited titles.

The Scottish Ministers, in exercise of the powers conferred on them by section 30(2) of the Fisheries Act 1981[1] and of all other powers enabling them in that behalf, hereby make the following Order:

Citation, commencement and extent
1.  - (1) This Order may be cited as the Sea Fishing (Enforcement of Community Conservation Measures) (Scotland) Order 2000 and shall come into force on 31st March 2000.

    (2) This Order extends to Scotland only.

    (3) Nothing in paragraph (2) shall be treated as prejudicing the effect in any other part of the United Kingdom of section 30(2A) of the Fisheries Act 1981 in relation to, or for purposes incidental to, any provision of this Order which creates an offence.

Interpretation
2.  - (1) In this Order-
 

"the Council Regulation" means Council Regulation (EC) No. 850/98 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms[2] as corrected by Corrigendum to Annex XII of the Council Regulation[3] and amended by Council Regulation (EC) No. 308/1999[4] and Council Regulation (EC) No. 1459/99[5];

"Community conservation measure" means a measure provided by Regulation 894/97 or by the Council Regulation specified in column 1 of the Schedule, as read, in the case of a measure provided by the Council Regulation, with any related provision of that Regulation mentioned in the entry in respect of such measure in column 1 of the Schedule;

"fish" includes crustacea, molluscs and parts of fish;

"fishery product" includes fish;

"Regulation 2847/93" means Council Regulation (EEC) No. 2847/93 establishing a control system applicable to the common fisheries policy[6] as last amended by Council Regulation (EC) No. 2846/98[7];

"Regulation 894/97" means Council Regulation (EC) No. 894/97 laying down certain technical measures for the conservation of fishery resources[8] as amended by Council Regulation (EC) No. 1239/98[9];

"relevant offence" means an offence under-

(a) article 3, or

(b) under any provision extending to any other part of the United Kingdom made for the purposes of implementing a Community conservation measure being a provision in respect of which, by virtue of section 30(2A) of the Fisheries Act 1981, proceedings may be commenced in any place in the United Kingdom;
 

"Scottish fishing boat" means a fishing vessel which is registered in the register maintained under section 8 of the Merchant Shipping Act 1995[10] and whose entry in the register specifies a port in Scotland as the port to which the vessel is to be treated as belonging;

"Scottish zone" has the same meaning as in section 126(1) of the Scotland Act 1998[11].

(a) any map, plan, graph or drawing;

(b) any photograph;

(c) any data, however reproduced, communicated via a satellite-based vessel monitoring system established under Article 3.1 of Regulation 2847/93;

(d) any 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 therefrom; and

(e) any film (including microfilm), negative, tape, disk or other device on which one or more visual images are recorded so as to be capable (as aforesaid) of being reproduced therefrom.
 

(a) to a numbered article is a reference to the article so numbered in this Order;

(b) to the Schedule is a reference to the Schedule to this Order; and

(c) to a numbered Article of the Council Regulation is a reference to the Article so numbered in the Council Regulation as read with any related provision of that Regulation mentioned in the entry relating to that Article in column 1 of the Schedule.
 

Offences
3.  - (1) Where there is, in respect of-
 

(a) any Scottish fishing boat wherever it may be;

(b) any other fishing boat within the Scottish Zone; or

(c) any fishery product, premises or vehicle in Scotland,
 

    (2) Subject to paragraph (3), any person who lands, transports, stores, sells, displays or offers for sale any fish in contravention of Articles 19.1, 26.1 or 36 of the Council Regulation, shall be guilty of an offence.

    (3) Paragraph (2) shall not apply to a person who lands a fish if that person is guilty of an offence under paragraph (1) above as respects the landing of that fish.

Penalties
4.  - (1) A person guilty of an offence under article 3(1) or any equivalent provision extending to any other part of the United Kingdom proceedings in respect of which were brought in Scotland by virtue of section 30(2A) of the Fisheries Act 1981[12], shall be liable on summary conviction-
 

(a) to a fine not exceeding the amount specified in column 3 of the Schedule in relation to the Community conservation measure, the contravention of, or failure to comply with, which founded the offence; and

(b) either-
 

(i) to a fine not exceeding the value of any fish in respect of which the offence was committed, or

(ii) to the forfeiture of any fish in respect of which the offence was committed; and
 

(c) to the forfeiture of any net or other fishing gear in respect of which the offence was committed, or which was used in committing the offence, or which was used for catching any fish in respect of which the offence was committed.
 

(a) to a fine;

(b) to the forfeiture of any fish in respect of which the offence was committed; and

(c) to the forfeiture of any net or other fishing gear in respect of which the offence was committed, or which was used in committing the offence, or which was used for catching any fish in respect of which the offence was committed.
 

(a) to a fine not exceeding the statutory maximum; and

(b) either-
 

(i) to a fine not exceeding the value of the fish in respect of which the offence was committed, or

(ii) to the forfeiture of the fish in respect of which the offence was committed.
 

(a) to a fine; and

(b) to the forfeiture of the fish in respect of which the offence was committed.
 

(a) order any boat involved in the commission of the offence and its gear and catch to be detained for a period not exceeding three months from the date of the conviction or until the fine is paid, the order is renewed for a further such period or a warrant is issued under sub-paragraph (b), whichever first occurs; or

(b) subject to paragraph (2), at any time after the imposition of the fine issue a warrant for the arrestment and sale of any such boat, its gear and catch.
 

    (3) 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.

    (4) Where in relation to a fine in respect of a relevant offence a transfer of fine order under section 222 of the Criminal Procedure (Scotland) Act 1995, section 90 of the Magistrates Courts Act 1980[14] or article 95 of the Magistrates' Courts (Northern Ireland) Order 1981[15] specifies a court of summary jurisdiction in Scotland this article shall apply as if the fine were a fine imposed by that court.

Powers of British sea-fishery officers in relation to fishing boats
6.  - (1) For the purposes of enforcement of article 3 or any provision extending to any other part of the United Kingdom made for the purposes of implementing a Community conservation measure any British sea-fishery officer may exercise in relation to-
 

(a) any Scottish fishing boat wherever it may be ; or

(b) any other fishing boat within the Scottish zone,
 

    (2) He may go on board the boat, with or without persons assigned to assist him in his duties, and may require the boat to stop and do anything else which will facilitate either the boarding of, or the disembarkation from, the boat.

    (3) He may require the attendance of the master and other persons on board the boat and may make any examination and inquiry which appears to him to be necessary for the purposes of enforcement mentioned in paragraph (1) and, in particular-
 

(a) may search for fish or fishing gear on the boat and may examine any fish on the boat and the equipment of the boat, including the fishing gear, and require persons on the boat to do anything which appears to him to be necessary for facilitating the examination;

(b) may require any person on board the boat to produce any document relating to the boat, to any fishing operations or other operations ancillary thereto or to the persons on board which is in the custody or possession of that person;

(c) for the purpose of ascertaining whether a relevant offence has been committed may search the boat for any such document and may require any person on board the boat to do anything which appears to him to be necessary for facilitating the search;

(d) inspect, take copies of and retain while he completes any search, examination or inspection provided for under this article, any such document produced to him or found on board;

(e) may require the master or any person for the time being in charge of the boat to render all such documents on a computer system into visible and legible form and to produce them in a form in which they may be taken away; and

(f) where the boat is one in relation to which there is reason to suspect that a relevant offence has been committed, may seize and detain any such document produced to him or found on board for the purpose of enabling the document to be used as evidence in proceedings for the offence,
 

    (4) Where it appears to a British sea-fishery officer that a relevant offence has at any time been committed, he may-
 

(a) require the master of the boat in relation to which the offence took place to take, or may himself take, the boat and its crew to the port which appears to him to be the nearest convenient port; and

(b) detain or require the master to detain the boat in the port,
 

Powers of British sea-fishery officers on land
7.  - (1) For the purpose of enforcing the provisions of article 3 or any provision extending to any other part of the United Kingdom made for the purposes of implementing a Community conservation measure any British sea-fishery officer may-
 

(a) enter and inspect at any reasonable time any premises used for carrying on any business in connection with the operation of fishing boats or activities connected therewith or ancillary thereto or with the treatment, storage or sale of fishery products;

(b) take with him such other persons as appear to him to be necessary and any equipment or materials;

(c) examine any fishery product on the premises and require persons on the premises to do anything which appears to him to be necessary for facilitating the examination;

(d) carry out at such premises such other inspections or tests as may reasonably be necessary;

(e) require any person not to remove or cause to be removed any fishery product from such premises for such a period as may be reasonably necessary for the purposes of establishing whether a relevant offence has at any time been committed;

(f) require any person on the premises to produce any documents which are in the custody or possession of that person relating to the catching, landing, transportation, trans-shipment, sale or disposal of any fishery product;

(g) for the purpose of ascertaining whether any person on the premises has committed a relevant offence, search the premises for any such document and may require any person on the premises to do anything which appears to him to be necessary for facilitating the search;

(h) inspect and take copies of any such document produced to him or found on the premises;

(i) require any appropriate or responsible person to render any such documents on a computer system into a visible and legible form and to produce them in a form in which they may be taken away; and

(j) if he has a reason to suspect that a relevant offence has been committed, seize and detain any such document produced to him or found on the premises for the purpose of enabling the document to be used as evidence in proceedings for the offence.
 

    (3) If a Sheriff on information on oath-
 

(a) is satisfied that there is reasonable ground to believe that any documents or other items which a British sea-fishery officer has power under this article to inspect are on any premises and that their inspection is likely to disclose evidence of the commission of a relevant offence; and

(b) is also satisfied either-
 

(i) that admission to the premises has been or is likely to be refused and that notice of intention to apply for a warrant has been given to the occupier; or

(ii) that an application for admission or the giving of such notice would defeat the object of the entry or that the premises are unoccupied or that the occupier is temporarily absent and it might defeat the object of the entry to await his return;
 

the Sheriff may by warrant signed by him, and valid for one month, authorise a British sea-fishery officer to enter the premises, if need be by reasonable force, accompanied by such persons as appear to the officer to be necessary.
 

(a) in Scotland or in the Scottish zone; or

(b) on a Scottish fishing boat wherever it may be,
 

    (2) This article applies to-
 

(a) any fishery product (including any receptacle which contains such product) in respect of which the officer has reasonable grounds to suspect that a relevant offence has been committed; and

(b) any net or other fishing gear which the officer has reasonable grounds to suspect has been used in the commission of such offence.
 

Obstruction of officers
10.  - (1) Any person who-
 

(a) fails without reasonable excuse to comply with any requirement imposed by a British sea-fishery officer under the powers conferred on British sea-fishery officers by articles 6, 7 or 8;

(b) without reasonable excuse prevents, or attempts to prevent, any other person from complying with any such requirement; or

(c) obstructs any such officer in the exercise of any of those powers,
 

    (2) A person guilty of an offence under paragraph (1) shall be liable-
 

(a) on summary conviction to a fine not exceeding the statutory maximum; or

(b) on conviction on indictment to a fine.
 

(a) a director, manager, secretary of other similar officer of the body corporate, or

(b) any person who was purporting to act in any such capacity,
 

    (2) In paragraph (1) "director", in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.

    (3) Where a relevant offence has been committed by a Scottish partnership and the contravention in question is proved to have occurred with the consent or connivance of, or to be attributable to any neglect on the part of, a partner, he as well as the partnership shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Admissibility in evidence of logbooks and other documents
12.  - (1) Any-
 

(a) logbook kept under Articles 6, 17.2 or 28c;

(b) declaration submitted under Articles 8.1, 11, 12, 17.2 or 28f;

(c) effort report completed under Articles 19b and 19c;

(d) document drawn up under Articles 9 or 13; and

(e) document containing required information received by a fisheries monitoring centre established under Article 3.7,
 

    (2) For the purpose of paragraph (1), "required information" shall mean data relating to-
 

(a) a fishing boat's identification;

(b) the most recent geographical position of the fishing boat expressed in degrees and minutes of longitude and latitude; and

(c) the date and time of the fixing of that position,
 

Revocation
13. The Sea Fishing (Enforcement of Community Conservation Measures) Order 1997[16] and the Sea Fishing (Enforcement of Community Conservation Measures) (Amendment) Order 1997[17] are revoked.
 

JOHN HOME ROBERTSON
Authorised to sign by the Scottish Ministers

St Andrew's House, Edinburgh
9th March 2000
 
 

Column 1	Column 2	Column 3
Community conservation measure	Subject matter	Maximum fine on summary conviction
I. Regulation 894/97
Article 11	Provisions relating to drift nets	The statutory maximum
II. The Council Regulation
1. Article 4, as read with Articles 5 and 10	Provisions relating to mesh sizes and target species and required catch percentages when using towed gears[18].	The statutory maximum
2. Article 5.3	Prohibition on transhipment without completing a logbook in accordance with the provisions of Article 6 of Regulation 2847/93.	£50,000
3. Article 6	Limitation on the maximum number of meshes in certain towed gear.	The statutory maximum
4. Article 7	Provisions relating to the inclusion and placement of square mesh panels in specified towed gear.	The statutory maximum
5. Article 8.1 and 8.2, as read with Article 8.3	Limitation on the twine thickness of towed gears.	The statutory maximum
6. Article 9.1, as read with Article 9.2	Prohibition on the carriage or use of towed gears constructed wholly or in part of netting other than types specified.	The statutory maximum
7. Article 11, as read with Articles 12 and 13	Limitations on the use or keeping on board of specified fixed gear[19].	The statutory maximum.
8. Article 14	Requirement to sort catches immediately after removal from nets.	The statutory maximum
9. Article15	Prohibition on the landing or retention of fish in excess of specified percentages.	The statutory maximum
10. Article16	Prohibition on devices that obstruct nets.	The statutory maximum
11. Article 18.3	Prohibition on the retention and landing of lobsters, crawfish and molluscs unless they are whole.	The statutory maximum
12. Article 18.4	Prohibition on the retention and landing of edible crabs unless they are whole, subject to a maximum percentage for the retention and landing of detached claws.	The statutory maximum
13. Article 19.1, as read with Articles 17, 18.1 and 18.2, 19.2 and 19.3 and 35	Prohibition on the retention, transhipment, landing, transport, storage, sale, offer for sale and display of undersized fish[20].	The statutory maximum
14. Article 20.1, as read with Article 20.2 and 20.3	Prohibition on fishing for herring in specified waters during specified times.	£50,000
15. Article 21.1, as read with Article 21.2	Prohibition on fishing for sprat in specified waters during specified times.	£50,000
16. Article 22.1, as read with Article 22.2 and 22.3	Prohibition on fishing for mackerel in specified waters during specified times.	£50,000
17. Article 23.1	Prohibition on fishing for anchovy with, and the retention on board of anchovy caught using, pelagic trawls in ICES Division VIIIc.	£50,000
18. Article 23.2	Prohibition on the simultaneous carrying on board of pelagic trawls and purse seines and in ICES Division VIIIc .	The statutory maximum
19. Article 24	Prohibition on fishing for skipjack and bigeye tuna using specified gear, and the retention on board of such species caught using such gear, in specified areas under the jurisdiction of Spain and Portugal.	£50,000
20. Article 25.1, as read with Article 25.2 and 25.3	Prohibition on retaining on board shrimps caught with specified gear.	£50,000
21. Article 26.1 as read with Article 26.2	Prohibition on the retention, transhipment, landing, transport, storage, sale, offer for sale and display of salmon and sea trout caught using towed gears or within specified waters.	The statutory maximum
22. Article 27.1, as read with Article 27.2	Prohibition on the retention on board of Norway pout caught using towed gears in specified waters.	£50,000
23. Article 28.1	Prohibition on fishing for hake in specified waters during specified times.	£50,000
24. Article 28.2	Prohibition on the carriage of specified gear in specified waters unless lashed and stowed in accordance with the provisions laid down in Article 20.1 of Regulation 2847/93.	The statutory maximum
25. Article 29	Restrictions on the fishing for plaice by certain vessels using specified gear in specified waters.	£50,000
26. Article 30.1	Provisions relating to the use of demersal towed gears.	The statutory maximum
27. Article 30.2 and 30.3	Prohibition on the use of certain towed gear in specified waters off the north-east coast of the United Kingdom and in ICES areas Vb and VI. Prohibition on the carriage of certain towed gears in specified waters unless lashed and stowed in accordance with the provisions laid down in Article 20(1) of Regulation 2847/93	The statutory maximum
28. Article 31.1 and 31.2, as read with Article 41	Prohibition on the use of explosives, stupefying substances or electric current for fishing. Prohibition on the sale, display or offer for sale of any marine organisms caught using methods incorporating the use of any kind of projectile.	The statutory maximum
29. Article 32.1, as read with Article 32.2 and 32.3	Provisions relating to the use of automatic grading equipment.	The statutory maximum
30. Article 33.1, as read with Article 33.2 and 33.3	Prohibition on the encirclement of marine mammals with purse seines[21].	The statutory maximum
31. Article 34	Restrictions on the use of beam trawls within 12 miles of the coasts of the United Kingdom and Ireland.	The statutory maximum
32. Article 35	Limitations on retention on board, transhipment, storage, transport, display or offer for sale of undersized organisms caught in the Skagerrak and Kattegat.	£50,000
33. Article 36	Prohibition on the landing, retention on board, transhipment, storage, transport, sale, display or offer for sale of salmon and sea trout caught within any part of the Skagerrak and Kattegat situated outside the four-mile limit measured from thebaselines of Member States.	£50,000
34. Article 37.1, as read with Article 37.2	Limitations on the use of certain trawls within 3 miles of the baselines in the Skagerrak and Kattegat between 1 July and 15 September.	£50,000
35. Article 38	Prohibition on the retention on board of herring, mackerel and sprat caught using purse seines or trawls between specified times in the Skagerrak or Kattegat.	£50,000
36. Article 39	Prohibition on the use of beam trawls in the Kattegat.	£50,000
37. Article 40	Prohibition, during the periods and in the areas referred to in Articles 37, 38 and 39 of the Council Regulation where trawls or beam trawls may not be used, on carrying on board such nets unless they are lashed and stowed in accordance with the provisions laid down in Article 20(1) of Regulation 2847/93.	The statutory maximum
38. Article 42.1, as read with Article 42.2	Prohibition on the physical or chemical processing, or transhipment for processing, of fish (except offal) on board a fishing vessel to produce fish-meal, fish-oil, or similar products.	The statutory maximum

This Order revokes the Sea Fishing (Enforcement of Community Conservation Measures) Order 1997 (S.I. 1997/1949) and the Sea Fishing (Enforcement of Community Conservation Measures) (Amendment) Order 1997 (S.I. 1997/2841) (article 13).

The Order re-enacts provisions for the enforcement of Article 11 of Council Regulation (EC) No. 894/97 (O.J. No. L132, 23.5.97, p.1) laying down certain technical measures for the conservation of fishery resources ("Regulation 894/97") and makes provisions for the enforcement of certain of the enforceable Community restrictions and obligations concerning the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms which are contained in Council Regulations (EC) No. 850/98 (O.J. No. L125, 27.4.98, p.1), as amended ("the Council Regulation").

The Order creates offences in respect of breaches of Regulation 894/97, and of the Council Regulation (article 3).

The Order provides penalties in relation to an offence under article 3 of the Order or any equivalent provision extending to any other part of the United Kingdom proceedings in respect of which were brought in Scotland by virtue of section 30 (2A) of the Fisheries Act 1981 (c.29) (article 4). (Section 30 (2A) was inserted by the Scotland Act (Consequential Modifications) (No. 2) Order 1999 (S.I. 1999/1820), Schedule 2, paragraph 68 (5)(a)).

The Order makes provision in relation to the recovery of fines imposed in respect of such offences or an offence under article 10 (obstruction of officers) (article 5).

The Order confers on British sea-fishery officers powers of enforcement in relation to fishing boats and on land. These include power to enter premises, to go on board fishing boats, to stop and search vehicles transporting fish, to examine fish, to require the production of documents, to search for and seize documents, to take a boat to the nearest convenient port and to seize fish and fishing gear (articles 6, 7 and 8).

Provision is also made in relation to the liability of officers for anything done in the purported exercise of powers conferred by the Order (article 9). The Order creates offences and provides penalties in respect of the obstruction of a British sea-fishery officer and makes provision in relation to offences committed by bodies corporate and Scottish partnerships and the admissibility of certain documents (articles 10, 11 and 12).

[1] 1981 c.29; relevant modifications are contained in the Scotland Act 1998 (Functions Exercisable in or as Regards Scotland) Order 1999 (S.I. 1999/1748), article 5 and the Scotland Act 1998 (Modification of Functions) Order 1999 (S.I. 1199/1756), articles 3, 5 and 6. The functions of the Secretary of State were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998 (c.46). See section 30(3) of the 1981 Act for definitions of "enforceable Community restriction", "enforceable Community obligation" and "the Ministers". Section 30 has effect in relation to Scotland as modified by section 30(5) inserted by the Scotland Act (Consequential Modifications) (No. 2) Order 1999 (S.I. 1999/1820), Schedule 2, paragraph 68(5)(b).back

[2] O.J. No. L125, 27.4.98, p.1.back

[3] O.J. No. L318, 27.11.98, p.63.back

[4] O.J. No. L038, 12.2.99, p.6.back

[5] O.J. No. L168, 3.7.99, p.1.back

[6] O.J. No. L261, 20.10.93, p.1.back

[7] O.J. No. L358, 31.12.98, p.5.back

[8] O.J. No. L132, 23.5.97, p.1.back

[9] O.J. No. L171, 17.6.98, p.1. With the exception of Articles 11, 18, 19 and 20, Regulations 894/97 is repealed by Article 49 of the Council Regulation as from 1st January 2000.back

[10] 1995 c.21.back

[11] 1998 c.46. The sea within British fishery limits (that is, the limits set by or under section 1 of the Fishery Limits Act 1976 (c.86)) which is adjacent to Scotland as determined by the Scottish Adjacent Waters Boundaries Order 1999 (S.I. 1999/1126).back

[12] Section 30(2A) was inserted by the Scotland Act (Consequential Modifications) (No. 2) Order 1999, Schedule 2, paragraph 68(5)(a).back

[13] 1995 c.46.back

[14] 1980 c.43.back

[15] S.I. 1981/1675 (N.I.26).back

[16] S.I. 1997/1949.back

[17] S.I. 1997/2841.back

[18] Provisions relating to the Skaggerak and Kattegat subject to Council Regulation 2742/99 (O.J. No. L431, 13.12.99, p.1), Article 9 and Annex V, paragraph 8 during 2000.back

[19] Provisions in relation to sole subject to Council Regulation 2742/99 (O.J. No. L431, 13.12.99, p.1), Article 9 and Annex V, paragraph 6 during 2000.back

[20] Prohibitions in relation to plaice subject to Council Regulation 2742/99 (O.J. No. L431, 13.12.99, p.1), Article 9 and Annex V, paragraph 9 during 2000.back

[21] Prohibition subject to Council Regulation 2742/99 (O.J. No. L431, 13.12.99, p.1), Article 9 and Annex V, paragraph 7.back