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SCOTTISH STATUTORY INSTRUMENTS


2004 No. 44

SEA FISHERIES

The Sea Fishing (Restriction on Days at Sea) (Scotland) Order 2004

  Made 31st January 2004 
  Laid before the Scottish Parliament 4th February 2004 
  Coming into force 1st February 2004 

The Scottish Ministers, in exercise of the powers conferred 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 (Restriction on Days at Sea) (Scotland) Order 2004 and shall come into force on 1st February 2004.

    (2) Subject to paragraph (3), this Order shall extend to Scotland and the Scottish Zone, and insofar as it extends beyond Scotland and the Scottish Zone, it does so only as a matter of Scots law.

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

Interpretation
     2.  - (1) In this Order-

    (2) In this Order, "logbook" has the same meaning as in Article 6 of Regulation 2847/93 as read with Regulation 2807/83, and for the purposes of any provision of this Order, other than article 13, any reference to a document, logbook or declaration includes, in addition to a document, logbook or declaration in writing-

    (3) Any information provided to any authority for the purposes of any provision of this Order shall be treated as also provided for the purposes of any equivalent provision.

Determination of management periods
     3.  - (1) Management periods, as referred to in paragraph 6(b) of Annex V, in relation to a relevant fishing boat shall be determined by the Scottish Ministers.

    (2) A person in charge of a relevant fishing boat may notify the Scottish Ministers indicating the preference of that person as to the length of the management period for that boat.

    (3) In determining the management period for that boat the Scottish Ministers shall have regard to any preference as to the length of the management period indicated in a notification under paragraph (2).

Absence from port
     4.  - (1) A person in charge of a relevant fishing boat which-

is guilty of an offence.

    (2) In addition to the number of days indicated in paragraph 6(a) of Annex V, applicable to the boat in accordance with any regulated gear it carries, as adjusted as necessary in terms of the second sub paragraph of paragraph 7, for each calendar month there is added to, or substituted for as the case may be, the number indicated in paragraph 6(a) of Annex V, such number of days (if any) as-

    (3) Where days have been transferred from one relevant fishing boat ("the donor") to another relevant fishing boat ("the recipient") the following shall apply, subject to any adjustment required by paragraph 10(a) of Annex V-

    (4) Where during any management period fishing gear is affixed to two or more fishing boats there shall be deducted from the basic number for each such boat that is a relevant fishing boat in relation to that gear and that period a number of days equal to the number when it was absent from port but the gear was being carried by any other such boat.

    (5) Subject to article 5, where during any management period a relevant fishing boat has-

the Scottish Ministers may deduct a number equal to the number of days in that excess.

    (6) In any proceedings for an offence under paragraph (1)(b) of this article, it shall be a defence for a person to show that the number of days of absence from port carrying any type of fishing gear comprising the offence was no greater than the number of days of absence carrying that gear purportedly but not validly transferred to that person under article 7 and that person did not know and had no reasonable cause to suspect that the donor was not entitled to transfer the days.

Procedure as to decisions to deduct days
     5.  - (1) In making a decision to deduct days under article 4(5), the Scottish Ministers-

    (2) The Scottish Ministers, before making a decision to deduct days under article 4(5), shall-

    (3) In this article-

Use of regulated gear
    
6.  - (1) A person in charge of a relevant fishing boat which fishes in contravention of the notification requirement in the first sub paragraph of paragraph 7 of Annex V is guilty of an offence.

    (2) A person in charge of a relevant fishing boat which carries or uses, whilst present in the cod recovery zone, regulated gear other than the regulated gear notified under the requirement in paragraph 7 of Annex V is guilty of an offence.

    (3) The competent authority for the purpose of the second indent of the third sub-paragraph of paragraph 7 of Annex V is the Scottish Ministers.

    (4) A relevant fishing boat which is present in the cod recovery zone shall only carry on board gear falling within one of the groupings of fishing gears specified in paragraph 4 of Annex V.

    (5) A person in charge of a relevant fishing boat which contravenes the prohibition in paragraph (4) is guilty of an offence.

Transfer of days from one boat to another
     7.  - (1) Transfer of unused days within the same management period from one relevant fishing boat ("the donor") to another ("the recipient") for the purposes of paragraph 10 of Annex V where either the donor or the recipient is, or both are, a relevant fishing boat, is permitted subject to the conditions specified in paragraph 10(a) to (d) of Annex V, to the extent specified in a notification of transfer sent to the Scottish Ministers.

    (2) A person who knowingly or recklessly makes a statement in a notification under paragraph (1) which is false in a material particular is guilty of an offence.

    (3) For the purposes of this article "the same management period" means any two management periods provided that the transfer takes place during the concurrence of the management periods.

Amendment of the Sea Fishing (Enforcement of Community Control Measures) (Scotland) Order 2000
     8. The Sea Fishing (Enforcement of Community Control Measures) (Scotland) Order 2000[9] is amended as follows:-

Mixing of species
     9. A person in charge of a relevant fishing boat or a foreign fishing boat within the Scottish Zone which retains species in contravention of paragraph 19 of Annex V (retention on board of cod) is guilty of an offence.

Transportation of cod
     10. Where any quantities of cod are transported in contravention of paragraph 21 of Annex V (transportation of cod to be accompanied by a copy of the relevant part of the logbook), the owner and hirer of, and the person responsible for, the vehicle used to transport the cod is guilty of an offence.

Landing of cod where prior notification is required
     11.  - (1) The competent authority for the purposes of paragraph 15 of Annex V (advance notice of entry into port) is the Scottish Ministers.

    (2) Where there is in respect of a relevant fishing boat or a foreign fishing boat entering a port in Scotland, a failure to comply with paragraph 15 of, or with a requirement given under paragraph 16 of, Annex V the master, the representative of the master, the owner and the charterer (if any) are guilty of an offence.

Landing of cod at a designated port
     12.  - (1) A person in charge of a relevant fishing boat which lands cod or a foreign fishing boat which lands cod within Scotland in contravention of paragraph 17 of Annex V as read with paragraph (3) of this article is guilty of an offence.

    (2) If cod is first landed in a designated port within the United Kingdom an appropriate sample of at least 20% of all landings of cod of 2 tonnes or more shall be weighed in the presence of a British sea-fishery officer prior to being offered for first sale, unless the following requirements are met-

    (3) A person in charge of a relevant fishing boat or foreign fishing boat who fails to comply with a requirement to weigh cod imposed in respect of that boat by a British sea fishery officer or a person or organisation acting as a controller for the purpose of paragraph 20 of Annex V is guilty of an offence.

    (4) For landings in the United Kingdom the ports, and where applicable the landing locations within them, designated for the purposes of paragraph 17 of Annex V are the ports specified in the Schedule to this Order.

Maintenance of logbook
     13.  - (1) An entry shall be made in a logbook of a relevant fishing boat which is-

    (2) Such an entry shall be made-

and the requirements of those Regulations for handing over and dispatch of logbook entries, as modified by article 14, shall apply to the entries required by this article as they apply to other entries.

    (3) Where a relevant fishing boat is absent from port and paragraph (4) requires a logbook entry to be made in respect of that absence the logbook entries shall be handed over and dispatched as if landing were made at the time of the arrival of the boat in port.

    (4) Where there is, in respect of a relevant fishing boat, a failure to make an entry required by this article the person in charge of that fishing boat is guilty of an offence.

Submission of logbook at designated port
     14.  - (1) The relevant part (the white top copy) of the logbook shall be-

by the person in charge of the relevant fishing boat prior to any landing in a designated port.

    (2) A person in charge of a relevant fishing boat who fails to comply with paragraph (2) is guilty of an offence.

Penalties
    
15.  - (1) A person guilty of an offence under this Order, or under any equivalent provision shall be liable-

    (2) The court by or before which a person is convicted of an offence under article 4(1), 9, 10, 11 or 12, or under an equivalent provision may order the forfeiture of-

    (3) Any person found guilty of an offence under article 4(1), 9, 10, 11 or 12 or under any equivalent provision shall, subject to the following provisions of this article, be liable on summary conviction to a fine not exceeding the value of the fish in respect of which the offence was committed.

    (4) A person shall not be liable to a fine under paragraph (3) in respect of such an offence if, under paragraph (2), the court orders the forfeiture of the fish in respect of which that offence was committed; and where a fine is imposed under paragraph (3) in respect of any offence, the court shall not have power under paragraph (2) to order the forfeiture of the fish in respect of which the offence was committed.

    (5) Subject to paragraph (4), any fine to which a person is liable under paragraph (3) shall be 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 any other enactment.

Recovery of fines
     16.  - (1) Without prejudice to the provisions of section 221 of the Criminal Procedure (Scotland) Act 1995[10], where a court has imposed a fine on any person in respect of a relevant offence, that court may for the purposes of recovering the fine-

    (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[11] or Article 95 of the Magistrates' Courts (Northern Ireland) Order 1981[12] 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
     17.  - (1) For the purpose of enforcing articles 4, and 6 to 14 of this Order or any equivalent provisions, any British sea-fishery officer may exercise the powers conferred by this article in relation to-

    (2) The officer may go on board the boat, with or without persons assigned to assist the officer in the duties of that officer 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) The officer may require the attendance of the master and other persons on board the boat and may make any examination and inquiry which appears to that officer to be necessary for the purpose mentioned in paragraph (1) of this article and, in particular-

but nothing in sub-paragraph (f) shall permit any document required by law to be carried on board the boat to be seized and detained except while the boat is detained in a port.

    (4) Where it appears to a British sea-fishery officer that an offence under this Order or any equivalent provision has at any time been committed, that officer-

and where such an officer detains or requires the detention of a boat that officer shall serve on the master a notice in writing 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
     18.  - (1) For the purpose of enforcing articles 4 and 6 to 14 of this Order or any equivalent provisions, any British sea-fishery officer may-

    (2) The provisions of paragraph (1) shall 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, shall 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.

    (3) If a sheriff by information on oath is satisfied-

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

any fishery product (including any receptacle which contains such product) and any net or other fishing gear to which this article applies.

    (2) This article applies to-

Protection of officers
    
20. A British sea-fishery officer or a person assisting such an officer by virtue of articles 17(2) or 18(1)(b) or an authorisation under article 18(3) of this Order shall not be liable in any civil or criminal proceedings for anything done in the purported exercise of the powers conferred by articles 17 and 18 of this Order if the court is satisfied-

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

is guilty of an offence.

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

Provisions as to offences
    
22.  - (1) Where any 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 be attributable to any neglect on the part of, a director, manager, secretary or other similar officer of the body corporate, or a person 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 the offence and 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 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.

    (3) Where any offence under this Order committed by an unincorporated association (other than a partnership) is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any officer of the association or any member of its governing body, that person as well as the association shall be guilty of the offence and liable to be proceeded against and punished accordingly.

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

of Council Regulation 2847/93 of 12th October 1993 shall, in any proceedings in Scotland for an offence under this Order or any equivalent provision, be received in evidence without being produced or sworn to by any witness and shall, unless the contrary is shown, be conclusive evidence as the matters stated therein.

    (2) For the purpose of paragraph (1), "required information" means-

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

Revocation
     24. The following Orders are hereby revoked-



Authorised to sign by the Scottish Ministers


Pentland House, Edinburgh
31st January 2004



SCHEDULE
Article 12(4)


LIST OF PORTS (AND WHERE APPLICABLE LOCATIONS WITHIN THE PORT) AT WHICH MORE THAN 2 TONNES OF COD TAKEN FROM THE WATERS COVERED BY THE NORTH SEA AND WEST OF SCOTLAND COD RECOVERY ZONES MUST BE LANDED


Port Location within port (where applicable)
ENGLAND AND WALES
North Shields     
Hartlepool Fish quay in Victoria Dock
Whitby Fish quay
Scarborough West Pier
Humberside (Hull and Grimsby) Hull - North side of Albert Dock & William Wright Dock

Grimsby - Fish Dock, Market Quay

Lowestoft Waveney Dock
Ramsgate Harbour
Shoreham Within the confines of the harbour
Plymouth Sutton Harbour, New Fish Market
Brixham     
Newlyn     
Padstow     
Milford Haven     
Holyhead Fish Dock
Whitehaven North Harbour on the Old North Wall Quay next to the Ice Plant and on the North Wall Quay next to the Fish Handling Facility building
Fleetwood Wyre Fish Dock
SCOTLAND
Eyemouth     
Pittenweem     
Aberdeen Palmerston Quay & Commercial Quay
Peterhead Peterhead Harbour excluding Peterhead Bay Harbour
Fraserburgh     
Buckie     
Lerwick All piers, quays and docks within harbour limits excluding those in Dales Voe
Scalloway     
Kirkwall     
Scrabster     
Kinlochbervie All quays lying to the North of the ice factory quay.
Lochinver     
Ullapool     
Stornoway     
Portree     
Mallaig     
Oban     
Campbeltown  
Troon     
NORTHERN IRELAND
Ardglass     
Portavogie     
Kilkeel     
Bangor     



EXPLANATORY NOTE

(This note is not part of the Order)


This Order provides for the enforcement in Scotland of the provisions of Annex
V ("the Annex") to Council Regulation 2287/2003 (O.J. No. L 344, 31.12.03) fixing for certain fish stocks and groups of fish stocks the fishing opportunities in Community waters for 2004.

The Order contains provisions relating to the determination for certain fishing boats of the management periods referred to in paragraph 6(b) of the Annex (article 3); and the calculation of the number of days on which a vessel may be absent from port for the purposes of the Annex (article 4(2) to (4)). It contains provisions relating to the deduction of days by the Scottish Ministers (article 4(5)) and the procedure to be followed in doing so (article 5).

Provision is made as to the use of regulated gears and associated offences (article 6), and the transfer of days from one boat to another (article 7).

The Order extends the application of the Sea Fishing (Enforcement of Community Control Measures) (Scotland) Order 2000 (S.S.I. 2000/7) in pursuance of the Annex (Article 8), and creates offences in respect of contraventions by certain persons of other provisions of the Annex concerning mixing of species, transportation of cod, the landing of cod where prior notification is required and the landing of cod at a designated port (articles 9, 10, 11 and 12). By virtue of article 12(4), the ports named in the Schedule to the Order are designated for the purposes of paragraph 17 of the Annex.

Provision is made for the maintenance of a logbook (article 13), and for the submission of the relevant part of the logbook at a designated port (article 14).

The Order provides for penalties (article 15) and for the recovery of fines imposed in respect of a relevant offence as defined in the Order (article 16).

For the purposes of enforcing provisions of the Annex the Order confers on British sea-fishery officers the powers 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 17 to 19).

Provision is made for the protection of British sea-fishery officers in the exercise of their powers under the Order (article 20) and for an offence of obstructing such officers (article 21).

Provision is made in relation to offences committed by a body corporate, a partnership or an unincorporated association (article 22) and in relation to the admissibility in evidence of logbooks and other documents (article 23).

The Order revokes the Sea Fishing (Restriction on Days at Sea) (Scotland) Order 2003 (S.I. 2003/56) and the Orders which amended that Order (article 24).

A Regulatory Impact Assessment in the relation to the Annex has been prepared and placed in SPICE. Copies can be obtained from the Scottish Executive Environment and Rural Affairs Department, Robb's Loan, Edinburgh, EH14 1TY.


Notes:

[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 (Modifications of Functions) Order 1999 (S.I. 1999/1756) 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) for a definition of "the Ministers". Section 30(2) has effect in relation to Scotland as modified by section 30(5). Section 30(5) was inserted by the Scotland Act 1999 (Consequential Modifications) (No. 2) Order (S.I. 1999/1820), Schedule 2, paragraph 68.back

[2] Section 30(2A) was inserted by the Scotland Act 1998 (Consequential Modifications) (No. 2) Order 1999 (S.I. 1999/1820), Schedule 2, paragraph 68.back

[3] O.J. No. L 344, 31.12.03, p.1.back

[4] 1995 c.21.back

[5] O.J. No. L 276, 10.10.83, p.1.back

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

[7] 1967 c. 84. Section 4 was amended by the Fishery Limits Act 1976 (c.86), section 3, the Fisheries Act 1981 (c.29), section 20 and the Sea Fish (Conservation) Act 1992 (c.60), section 1 and has effect in relation to Scotland as modified by section 22A inserted by the Scotland Act 1998 (Consequential Modifications) (No. 2) Order 1999 (S.I. 1999/1820), Schedule 2, paragraph 43(13).back

[8] 1998 c.46. 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

[9] S.S.I. 2000/7.back

[10] 1995 c.46.back

[11] 1980 c.43.back

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

[13] S.S.I. 2003/56.back

[14] S.S.I. 2003/66.back

[15] S.S.I. 2003/300.back

[16] S.S.I. 2003/623.back



ISBN 0 11062624 9


 
© Crown copyright 2004
Prepared 23 February 2004


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