Scottish Statutory Instrument 2002 No. 51

The Sea Fishing (Enforcement of Community Quota and Third Country Fishing Measures) (Scotland) Order 2002

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"the Council Regulation" means Council Regulation (EC) No. 2555/2001[2] fixing, for 2002 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where limitations in catch are required;

"Community quota measure" means a provision of the Council Regulation specified in column 1 of Schedule 1 as read with any qualifying words relating to the provision in that column and, in the case of Article 8 and paragraph 2 of Annex IV of the Council Regulation, with article 3 of this Order;

"Community third country fishing measure" means a provision of the Council Regulation specified in column 1 of Schedule 2;

"fishery product" includes fish;

"ICES" followed by a roman numeral with or without a letter shall be construed as a reference to whichever of the statistical sub-areas and divisions of the International Council for the Exploration of the Sea[3] identified therein by that roman numeral or that roman numeral and letter as the case may be;

"Regulation 2847/93" means Council Regulation (EEC) No. 2847/93 establishing a control system applicable to the common fisheries policy[4] as amended by Council Regulation (EC) 2870/95[5], Council Decision (EC) 95/524[6], Council Regulation (EC) 2489/96[7], Council Regulation (EC) 686/97[8], Commission Regulation (EC) 1489/97[9], Council Regulation (EC) 2205/97[10], Council Regulation (EC) 2635/97[11] and Council Regulation (EC) 2846/98[12];

"relevant offence" means, an offence under-

(a) article 4; or

(b) any provision extending to any other part of the United Kingdom made for the purposes of implementing a Community quota measure or a Community third country fishing measure, being a provision in respect of which, by virtue of section 30(2A)[13] of the Fisheries Act 1981, proceedings may be commenced in any place in the United Kingdom;

"Scotland" has the same meaning as in section 126 of the Scotland Act 1998[14];

"Scottish fishing boat" means a fishing vessel which is registered in the register maintained under section 8 of the Merchant Shipping Act 1995[15] and whose entry in the register specifies a port in Scotland as the port to which the vessel is to be treated as belonging; and

"Scottish zone" has the same meaning as in section 126 of the Scotland Act 1998[16].

    (2) In this Order, any reference to a logbook, declaration or document includes, in addition to a logbook, declaration or document in writing-

(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 aids) 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 (with or without the aid of some other equipment) of being reproduced therefrom.

    (3) Unless the context otherwise requires, any reference in this Order-

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

(b) to a numbered paragraph is a reference to the paragraph so numbered in the article in which it appears in this Order;

(c) to a numbered Schedule is a reference to the Schedule to this Order so numbered; and

(d) to a numbered Article or Annex is a reference to the Article or Annex so numbered in the Council Regulation.

    (4) Column 2 of Schedule 1 (which provides in relation to each Community quota measure an indication of the subject matter of the measure) shall not be read as limiting the scope of any Community quota measure and shall be disregarded in relation to any question arising as to the construction of this Order.

    (5) Column 2 of Schedule 2 (which provides in relation to each Community third country fishing measure an indication of the subject matter of the measure) shall not be read as limiting the scope of any Community third country fishing measure and shall be disregarded in relation to any question arising as to the construction of this Order.

Landing of unsorted herring
     3.  - (1) For the purpose of the prohibitions set out in paragraph 2 of Annex IV to the Council Regulation, the harbours in Scotland at which a fishing boat may land catches of fish containing unsorted herring are, subject to paragraph (5), those harbours mentioned in paragraph (2).

    (2) The harbours referred to in paragraph (1) are Aberdeen and Lerwick.

    (3) The master of a fishing boat with a catch of fish containing unsorted herring may, before landing, apply to a British sea fishery officer at any harbour in Scotland, other than a harbour mentioned in paragraph (2), for a decision as to the suitability of the harbour for landing of the catch.

    (4) On receipt of an application under paragraph (3), the British sea-fishery officer shall decide whether the sampling systems at the harbour are adequate for the purposes of monitoring effectively the landing of the catch having regard to the overall size and characteristics of the catch and shall notify the decision of that officer to the master.

    (5) Where a British sea-fishery officer notifies the master in accordance with paragraph (4) that the systems at a harbour are adequate for the purposes mentioned in that paragraph, the harbours in Scotland at which the catch may be landed shall include that harbour in addition to those mentioned in paragraph (2).

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

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

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

a contravention of, or failure to comply with, any Community quota measure, the master, the owner and the charterer (if any) shall each be guilty of an offence.

    (2) Where there is, in respect of any fishing boat within the Scottish zone, a contravention of, or failure to comply with, any Community third country fishing measure, the master, the owner and the charterer (if any) shall each be guilty of an offence.

    (3) Nothing in this Order shall be taken to constitute an offence to land, from a Scottish fishing boat, a catch containing unsorted herring at a harbour outwith Scotland where sampling programmes mentioned in paragraph 2 of Annex IV to the Council Regulation are in place.

Penalties
     5.  - (1) A person guilty of an offence under article 4(1), or under 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, shall be liable-

(a) on summary conviction, to a fine not exceeding the amount specified in column 3 of Schedule 1 in relation to the Community quota measure, the contravention of, or failure to comply with, which founded the offence; and

(b) on conviction on indictment, to a fine.

Recovery of fines
     6.  - (1) Without prejudice to the provisions of section 221 of the Criminal Procedure (Scotland) Act 1995[17], where a court has imposed a fine on any person in respect of a relevant offence or an offence under article 11, that court may for the purposes of recovering the fine-

(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-


(i) of the conviction or until the fine is paid;

(ii) the order is renewed for a further period (not exceeding three months); or

(iii) on which a warrant is issued under sub paragraph (b) below,



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.

    (2) The court shall 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.

    (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[18] or article 95 of the Magistrates' Courts (Northern Ireland) Order 1981[19] 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
     7.  - (1) For the purposes of enforcement of article 4(1), or any provision extending to any other part of the United Kingdom made for the purposes of implementing a Community quota measure, a 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,

and where such an officer detains or requires the detention of a boat that officer shall serve notice in writing on the master stating that the boat will be or is required to be detained until the notice is withdrawn by the service on the master of a further notice in writing signed by a British sea fishery officer.

Powers of British sea fishery officers on land
     8.  - (1) For the purpose of enforcing the provisions of article 4(1) or (2), or any provision extending to any other part of the United Kingdom made for the purposes of implementing a Community quota measure or Community third country fishing 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 that officer such other persons as appear to that officer 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 that officer 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, transhipment, 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 that officer to be necessary for facilitating the search;

(h) inspect and take copies of any such document produced 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 that officer has reason to suspect that a relevant offence has been committed, seize and detain any such document produced or found on the premises, for the purposes of enabling the document to be used as evidence in proceedings for the offence.

Powers of British sea fishery officers to seize fish and fishing gear
     9.  - (1) Any British sea fishery officer may seize-

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

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

Protection of officers
     10. A British sea-fishery officer or a person assisting such an officer by virtue of articles 7(3) or 8(1)(b) or (3) shall not be liable in any civil or criminal proceedings for anything done in the purported exercise of the powers conferred by articles 7, 8 or 9 if the court is satisfied-

(a) that the act was done in good faith;

(b) that there were reasonable grounds for doing it; and

(c) that it was done with reasonable skill and care.

Obstruction of officers
     11.  - (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 such officers by articles, 7, 8, or 9;

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

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

Offences by bodies corporate
     12.  - (1) Where an offence under this Order committed by a body corporate or a partnership is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or similar officer of the body corporate, or any person who was purporting to act in any such capacity (or in the case of a partnership, a partner or a person who was purporting to act as such), that person as well as the body corporate or the partnership, as the case may be, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

    (2) Where the affairs of a body corporate are managed by its members, the provisions of paragraph (1) shall apply in relation to the acts and defaults of a member in connection with the member's functions of management as if the member were a director of the body corporate.

Admissibility in evidence of logbooks and other documents
     13.  - (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 Article 9 or 13; or

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

as communicated via a satellite based vessel monitoring system established under Article 3.1 of Regulation 2847/93.

    (3) Any logbook, declaration, report or other document kept on board or held in pursuance of Article 14 of the Council Regulation shall, in any proceedings for an offence under article 4(2), or under 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[20], be received in evidence without being produced or sworn to by any witness and shall, unless the contrary is shown, be conclusive evidence as to the matters stated therein.

Revocation and saving
     14.  - (1) Subject to paragraph (2), the Sea Fishing (Enforcement of Community Quota and Third Country Fishing Measures) (Scotland) Order 2001[21] ("the 2001 Order") is hereby revoked.

    (2) The 2001 Order shall continue to apply for the purposes of the legal process of such charges as may be brought in relation to a relevant offence (within the meaning of the 2001 Order) or under article 11 of the 2001 Order.


ROSS FINNIE
A member of the Scottish Executive

St Andrew's House, Edinburgh
11th February 2002

[2] O.J. No. L 347, 31.12.2001, p.1.back

[3] Cmnd. 2586.back

[4] O.J. No. L 261, 20.10.93, p.1.back

[5] O.J. No. L 301, 14.12.95, p.1.back

[6] O.J. No. L 301, 14.12.95, p.35.back

[7] O.J. No. L 338, 28.12.96, p.12.back

[8] O.J. No. L 102, 19.4.97, p.1.back

[9] O.J. No. L 202, 30.7.97, p.18.back

[10] O.J. No. L 304, 7.11.97, p.1.back

[11] O.J. No. L 356, 31.12.97, p.14.back

[12] O.J. No. L 358, 31.12.98, p.5.back

[13] 1981 c.29; section 30(2A) was inserted by S.I. 1999/1820.back

[14] 1998 c.46.back

[15] 1995 c.21.back

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

[17] 1995 c.46.back

[18] 1980 c.43.back

[19] S.I. 1981/1675.back

[20] 1981 c.29; section 30(2A) was inserted by S.I. 1999/1820.back

[21] S.S.I. 2001/117.back