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STATUTORY INSTRUMENTS


2003 No. 229

SEA FISHERIES, ENGLAND AND WALES

The Sea Fishing (Restriction on Days at Sea) Order 2003

  Made 6th February 2003 
  Laid before Parliament 7th February 2003 
  Coming into force 8th February 2003 

The Secretary of State for Environment, Food and Rural Affairs and the Secretaries of State respectively concerned with sea fishing in Scotland, Wales and Northern Ireland, in exercise of the powers conferred upon them by section 30(2) of the Fisheries Act 1981[1] make the following Order:

Title, commencement, extent and application
     1.  - (1) This Order may be cited as the Sea Fishing (Restriction on Days at Sea) Order 2003 and shall come into force on 8th February 2003.

    (2) Subject to paragraph (3), this Order shall not form part of the law of Scotland or Northern Ireland.

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

    (4) This Order does not apply to any fishing boat which is less than 10 metres in overall length within the meaning of paragraph 1 of Annex XVII.

Interpretation
    
2.  - (1) In this Order - 

    (2) In this Order - 

    (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.

Absences from port etc.
     3.  - (1) Subject to article 4, a person in charge of a relevant British fishing boat which, during any part of the period specified in paragraph 1 (duration of controls) of Annex XVII, either - 

is guilty of an offence.

    (2) In this Order, the person in charge of a relevant British fishing boat is its owner, master or charterer (if any), and the number of days permitted to such a boat for any period identified below is the basic number, that is to say - 

cumulatively adjusted in accordance with the following provisions of this article.

    (3) In relation to any relevant British fishing boat and in respect of any type of fishing gear it may carry, there is - 

    (4) Where a number of days is transferred from one period to the next in accordance with article 5, that number is - 

    (5) Where a number of days is transferred in the same period from a donor to a recipient in accordance with article 6, that number is - 

    (6) Where during any 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 British 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.

    (7) Where during any period a relevant British fishing boat has purported to transfer days relating to fishing gear in accordance with article 6 in excess of its unused days, there shall be deducted from its basic number relating to that gear for the next period a number equal to the number of days in that excess.

    (8) Where during any period a relevant British fishing boat has been absent from port carrying fishing gear in excess of the days permitted to it by this article, there shall be deducted from its basic number relating to that gear for the next period a number equal to the number of days in that excess unless, in consequence of the operation of article 4, the absence in question would not be an offence.

    (9) In any proceedings for an offence under paragraph 3(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 him under article 6 and - 

that the donor was not entitled to transfer them.

    (10) In this article, the relevant prohibition in paragraph 6(a) of Annex XVII is the prohibition on absence from port carrying the gear defined in paragraph 4(b) of Annex XVII in the area defined in paragraph 2(a) of Annex XVII, and the remainder of paragraph 6(a) of Annex XVII is paragraph 6(a) save as covered by the relevant prohibition.

Exception in relation to absences from ports etc.
     4.  - (1) A person shall not be guilty of an offence under article 3(1) in respect of an activity relating to a boat in a period specified in article 3(2)(b) if - 

Transfer of days from one period to another
    
5.  - (1) Transfer of unused days by any relevant British fishing boat from one period to the next for the purposes of paragraph 10(a) of Annex XVII is permitted and shall have effect, to the extent specified in paragraph (2).

    (2) The number of days transferred in relation to the boat for any type of fishing gear from one period to the next is the maximum number of unused days which may be permitted to be so transferred for that gear under paragraph 10(a) of Annex XVII, rounded down to the nearest whole number.

Transfer of days from one boat to another
    
6.  - (1) Transfer of unused days within the same period from one British fishing boat ("the donor") to another ("the recipient") for the purposes of paragraph 10(b) of Annex XVII, where either the donor or the recipient is, or both are, a relevant British fishing boat, is permitted, subject to paragraphs (3) to (5) of this article, to the extent specified in a notification of transfer sent under paragraph (2) of this article or under any equivalent provision.

    (2) Where the donor is a relevant British fishing boat, a notification of transfer, which must be made in the form set out in Schedule 1 and contain all the particulars required by that form, must be signed by the donor's owner (or, as the case may be, each part owner) and sent to the Department for Environment, Food and Rural Affairs before the end of the period in question.

    (3) A transfer is not permitted if - 

    (4) If, before this Order comes into force, the donor has not submitted a logbook containing an entry showing that it was fishing in any of the areas specified in paragraph 2 of Annex XVII with a type of fishing gear specified in paragraph 4 of Annex XVII at any time during the year 2001 or 2002, then a transfer is not permitted.

    (5) The number of days transferred for any type of fishing gear in a specified period is whichever is the smaller of:

    (6) A person who makes a false statement in a notification under paragraph (2) of this article is guilty of an offence.

    (7) In Schedule 1 - 

Amendment of the Sea Fishing (Enforcement of Community Control Measures) Order 2000 pursuant to paragraph 12 of Annex XVII
     7.  - (1) Insofar as it extends to England and Wales, the Sea Fishing (Enforcement of Community Control Measures) Order 2000[14] is amended by:

Landing of cod
     8.  - (1) The competent authority for the purposes of paragraph 13 of Annex XVII (advance notice of landing of cod in excess of 1 tonne) is the authority responsible for the control of sea fisheries in the country in which the landing is to take place.

    (2) For landings in the United Kingdom the ports, and where applicable the landing locations within them, designated for the purposes of paragraph 14 of Annex XVII (landing of cod in excess of 2 tonnes) are listed in Schedule 2.

    (3) Where there is, in respect of - 

a failure to comply with, or with a requirement given under, paragraph 13 of Annex XVII, the master, his representative, the owner and the charterer (if any) are guilty of an offence.

    (4) A person in charge of - 

Mixing of species
    
9. A person in charge of - 

which retains species in contravention of paragraph 17 of Annex XVII (retention on board of cod and other species in same containers), is guilty of an offence.

Transportation of cod
    
10. Where any quantities of cod are transported in contravention of paragraph 20 of Annex XVII (transportation of cod to be accompanied by a landing declaration), the owner and hirer of, and the person responsible for, the vehicle used to transport the cod is guilty of an offence.

Maintenance of logbooks
     11.  - (1) An entry shall be made in the logbook of any relevant British fishing boat which is absent from port carrying any of the gear specified in paragraph 4 of Annex XVII but not fishing as specified in Article 6 of Regulation 2847/93, in respect of each particular which would be required to be entered by that Article (as amplified by Regulation 2807/83) were the boat so fishing, and such an entry shall state the type of fishing gear carried.

    (2) Such an entry shall be made - 

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

    (3) Where there is, in respect of a relevant British fishing boat, a failure to make an entry required by this article, or to comply with requirements for handing over and dispatch referred to in this article, the person in charge of that fishing boat is guilty of an offence.

Penalties
     12.  - (1) A person guilty in England and Wales of an offence under article 3(1), 6(6), 8, 9, 10 or 11 of 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 may order the forfeiture of:

    (3) Any person found guilty of an offence under article 3(1), 8 or 9 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 he is liable in respect of that offence under this article.

Recovery of fines
     13.  - (1) Where a fine is imposed by a magistrates' court in England and Wales on the master, owner or charterer, of a fishing boat who is convicted by the court of an offence under this Order or any equivalent provision, the court may - 

    (2) Sections 77(1) and 78 of the Magistrates' Courts Act 1980[15] (postponement of issue of, and defects in, warrants of distress) shall apply to a warrant of distress issued under this article in England and Wales as they apply to a warrant of distress issued under Part III of that Act.

    (3) Where, in relation to a fine in respect of an offence under this Order or any equivalent provision, an order under legislation extending to Scotland or Northern Ireland, reciprocally replicating the effect of an order under section 90 of the Magistrates' Courts Act 1980 (transfer of fines to Scotland and Northern Ireland) specifies a petty sessions area in England and Wales, the preceding provisions of this article shall apply as if the fine were imposed by a court within that petty sessions area.

Powers of British sea-fishery officers in relation to fishing boats
     14.  - (1) For the purpose of enforcing articles 3 to 9 and 11 of this Order or any equivalent provisions, or to facilitate the cross-checking provided for in paragraph 18 of Annex XVII, any British sea-fishery officer may exercise the powers conferred by this article in relation to - 

    (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 purpose mentioned in paragraph (1) of this article and, in particular - 

but nothing in sub-paragraph (f) above 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 article 3(1), 8, 9 or 11 of this Order or any equivalent provisions has at any time been committed, he may - 

and where such an officer detains or requires the detention of a boat he 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
     15.  - (1) For the purpose of enforcing articles 3 to 11 of this Order or any equivalent provisions, or to facilitate the cross-checking provided for in paragraph 18 of Annex XVII, any British sea-fishery officer may - 

    (2) The provisions of paragraph (1) above shall also apply in relation to any land used in connection with any of the activities described in paragraph (1) above, or in respect of any vehicle which a British sea-fishery officer has reasonable cause to believe is being used to transport fisheries 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 in England and Wales a justice of the peace on sworn information in writing is satisfied - 

Powers of British sea-fishery officers to seize fish and fishing gear
     16.  - (1) This article applies - 

    (2) Where this article applies, any British sea-fishery officer may seize - 

Protection of officers
    
17. An officer or a person assisting him by virtue of article 14(2)or 15(1)(b), or authorisation under article 15(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 on him by articles 14 and 15 of this Order if the court is satisfied that the act was done in good faith, that there were reasonable grounds for doing it and that it was done with reasonable skill and care.

Obstruction of officers
     18.  - (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
    
19.  - (1) Where any offence under article 3(1), 6(6), 8, 9, 10 or 11 of this Order or any equivalent provision committed by a body corporate 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, he as well as the body corporate shall be guilty of the offence and liable to be proceeded against and punished accordingly.

    (2) Where any offence under article 3(1), 6(6), 8, 9, 10 or 11 of this Order or any equivalent provision committed by 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 partner, he as well as the partnership shall be guilty of the offence and liable to be proceeded against and punished accordingly.

    (3) Where any offence under article 3(1), 6(6), 8, 9, 10 or 11 of this Order or any equivalent provision 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, he 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
     20.  - (1) Any - 

of Regulation 2847/93 shall, in any proceedings in England and Wales for an offence under this Order or any equivalent provisions, be evidence of the matters stated therein and so shall any additional entry in a logbook made pursuant to this Order.

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

as communicated via a satellite-based vessel monitoring system established under Article 3(1) of Regulation 2847/93.


Elliot Morley
Parliamentary Under-Secretary of State Department for Environment, Food and Rural Affairs

4th February 2003


Helen Liddell
Secretary of State for Scotland

6th February 2003


Peter Hain
Secretary of State for Wales

4th February 2003


Paul Murphy
Secretary of State for Northern Ireland

6th February 2003



SCHEDULE 1
Article 6(2)


TRANSFER OF DAYS AT SEA FOR USE IN THE COD RECOVERY ZONE


"



SCHEDULE 2
Article 8(2)


LIST OF PORTS (AND WHERE APPLICABLE LOCATIONS WITHIN THE PORT) IN THE UNITED KINGDOM AT WHICH MORE THAN 2 TONNES OF COD 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 England and Wales of the provisions of Annex XVII ("the Annex") to Council Regulation 2341/2002 (OJ No. L356, 31.12.2002, p12) fixing for certain fish stocks and groups of fish stocks the fishing opportunities in Community waters for 2003.

The Order contains provisions relating to the calculation of the number of days on which a
vessel may be absent from port for the purposes of the Annex (article 3(2)-(8)) and the transfer of days from one period to another (article 5) and from one vessel to another (article 6 and Schedule 1).

The Order creates offences in respect of breaches, by a person in charge of a relevant British fishing boat (as defined in the Order), of the provisions of paragraphs 6(a) (absence from port in excess of number of permitted days), 7 (use of single type of gear), 8 (use of gear in different areas) and 9 (use of gears in given periods) of the Annex (article 3(1)), as qualified by a defence for unwitting recipients of excess days (article 3(9)). An offence is not committed where a boat would not have exceeded its permitted days under the Annex if the management periods were one month, rather than two months in length (article 4).

The Order also creates offences in respect of breaches of other provisions of the Annex (articles 8, 9 and 10) relating to landing cod without advance notice (paragraph 13) or at an unauthorised location (paragraph 14), mixing of cod and other species on board (paragraph 17) or transportation of cod on land without an accompanying landing declaration (paragraph 20). It also imposes additional requirements relating to logbooks (article 11). Failure to comply with those requirements is an offence, as is the making of a false statement by any person in a notification under article 6(2) (article 6(6)). The application of the Sea Fishing (Enforcement of Community Control Measures) 2000 (S.I. 2000/51) is extended in pursuance of paragraph 12 of the Annex (article 7).

The Order provides that a person guilty of an offence under it other than an offence under article 18(1) is liable, on summary conviction, to a fine not exceeding £50,000 and on conviction on indictment to a fine. Further fines up to and including the value of any fish caught in committing the offence are permitted and the court may also order the seizure of fish caught or equipment used in, or in activities leading to, the commission of the offence (article 12).

The Order also provides for the recovery of fines imposed, or treated as imposed, by a magistrates' court in England or Wales (article 13).

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 14, 15 and 16). Protection of such officers from liability is set out in article 17, and impeding them is an offence under article 18, with a fine of up to the statutory maximum on summary conviction and a fine on conviction on indictment. Articles 19 and 20 deal with corporate and equivalent offences and admissibility of documents in evidence.

A Regulatory Impact Assessment in relation to the Annex and this Order has been prepared and placed in the library of each House of Parliament. Copies can be obtained from Defra, Fisheries Division I, 4th Floor, Nobel House, Smith Square, London SW1P 3JR.


Notes:

[1] 1981 c. 29. See section 30(3) for the definition of "the Ministers", as modified by Schedule 2, paragraph 68(5) of the Scotland Act 1998 (Consequential Modifications) (No. 2) Order 1999 (S.I. 1999/1820). Article 3(1) of, and Schedule 1 to, the Scotland Act 1998 (Concurrent Functions) Order 1999 (S.I. 1999/1592) provide for the functions exercisable under section 30(2) of the 1981 Act to be exercised by the Ministers, concurrently with the Scottish Ministers, in relation to: British fishing boats (other than Scottish ones) within the Scottish zone; and Scottish fishing boats within British fishery limits but outside the Scottish zone. By virtue of article 2(a) of, and Schedule 1 to, the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/672) the functions exercisable under section 30(2) of the 1981 Act were transferred to the National Assembly in so far as exercisable in relation to Wales (defined in section 155(1) of the Government of Wales Act 1998 (c. 38) as including "the sea adjacent to Wales out as far as the seaward boundary of the territorial sea"); in respect of waters beyond Wales these functions remain exercisable by the Ministers. The Government of Wales Act 1998, Schedule 3, paragraph 5 provides that any power of a Minister of the Crown transferred to the Assembly by virtue of S.I. 1999/672 should continue to be exercisable by the Minister who, but for that transfer, would have continued to hold that power for the purpose of implementing any Community obligation. By virtue of article 2(1) of the Transfer of Functions (Agriculture and Fisheries) Order 2000 (S.I. 2000/1812), any remaining functions of the Secretaries of State for Scotland and Wales under section 30(2) of the 1981 Act were transferred to the Minister of Agriculture, Fisheries and Food. Article 3 provides that this shall not apply to any function exercisable by those Secretaries of State in relation to any function which is exercisable by them by paragraph 5 of Schedule 3 to the Government of Wales Act 1998. The functions of the Minister of Agriculture, Fisheries and Food and one or more named Secretaries of State (however described) acting jointly were transferred to the Secretary of State for Environment, Food and Rural Affairs and the one or more Secretaries of State acting jointly by virtue of article 2(5) of the Ministry of Agriculture, Fisheries and Food (Dissolution) Order 2002 (S.I. 2002/794). The Sea Fisheries (Northern Ireland) Order 2002 (S.I. 2002/790) Schedule 2, paragraph 3 provides that the function in section 30(2) of the 1981 Act is to be exercisable concurrently by the Department for Agriculture and Rural Development insofar as it relates to sea fishing within the Northern Ireland zone and to Northern Ireland fishing boats outside that zone.back

[2] OJ No. L356, 31.12.2002, p. 12.back

[3] 1995 c. 21.back

[4] OJ No. L276, 10.10.1983, p. 1.back

[5] OJ No. L268, 9. 10. 2001, p. 23.back

[6] OJ No. L261, 20.10.1993, p. 1.back

[7] OJ No. L358, 31.12.1998, p. 5.back

[8] 1998 c. 47.back

[9] 1998 c. 46; see section 126 and the Scottish Adjacent Waters Boundaries Order 1999 (S.I. 1999/1126).back

[10] OJ No. L337, 30.12.99, p. 10.back

[11] OJ No. L358, 31.12.02, p. 49 .back

[12] 1967 c. 84. Section 4 was amended by section 3 of the Fishery Limits Act 1976 (c. 86), section 20 of the Fisheries Act 1981 (c. 29), section 1 of the Sea Fish (Conservation) Act 1992 (c. 60) and article 4 of, and Schedule 2 to, the Scotland Act 1998 (Consequential Modifications) (No. 2) Order 1999 (S.I. 1999/1820).back

[13] S.I. 1993/3138; the relevant amending instrument is 1999/3206.back

[14] S.I. 2000/51.back

[15] 1980, c. 43. Section 78 was amended by Criminal Justice Act 1982 (c. 48), sections 37 and 46, and section 90 was amended by the Criminal Justice and Public Order Act 1994 (c. 33), section 47(2).back



ISBN 0 11 045066 3


 
© Crown copyright 2003
Prepared 10 March 2003


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