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STATUTORY INSTRUMENTS


2005 No. 393

SEA FISHERIES, ENGLAND

The Sea Fishing (Restriction on Days at Sea) Order 2005

  Made 25th February 2005 
  Laid before Parliament 25th February 2005 
  Coming into force 28th February 2005 


ARRANGEMENT OF REGULATIONS


PART 1

PRELIMINARY
1. Title, commencement, extent and application
2. Interpretation

PART 2

COD
3. Establishment of management periods
4. Absences from port
5. Carriage and operation of fishing gears
6. Transfer of days from one boat to another
7. Transport of cod
8. Mixing of species
9. Prior notification of landing, discharge or transhipment
10. Landing of cod at a designated port
11. Recording information on catches of fish
12. Maintenance of logbooks

PART 3

SOLE
13. Establishment of management periods
14. Absences from port
15. Carriage and operation of fishing gears
16. Transfer of days from one boat to another
17. Transport of sole
18. Mixing of species
19. Transhipment or landing relating to third countries
20. Weighing of sole
21. Recording information on catches of fish
22. Maintenance of logbooks

PART 4

ENFORCEMENT
23. Penalties and defence
24. Recovery of fines
25. Powers of British sea-fishery officers in relation to fishing boats
26. Powers of British sea-fishery officers on land
27. Powers of British sea-fishery officers to seize fish and fishing gear
28. Protection of British sea-fishery officers
29. Obstruction of British sea-fishery officers
30. Provisions as to offences
31. Admissibility in evidence of logbooks and other documents

PART 5

SUPPLEMENTARY
32. Consequential and connected amendments
33. Revocation

  Schedule List of Ports

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



PART 1

PRELIMINARY

Title, commencement, extent and application
     1.  - (1) This Order may be cited as the Sea Fishing (Restriction on Days at Sea) Order 2005 and shall come into force on 28th February 2005.

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

    (3) Nothing in paragraph (2) shall be treated as prejudicing 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 length as set out in point 1 of Annex IVa and point 1 of Annex IVc.

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.

    (4) Expressions in this Order which are not defined in paragraph (1) above and which appear in Annex IVa or Annex IVc of Council Regulation (EC) No 27/2005 or Regulation 423/04 have the same meaning in this Order as they respectively do in those Regulations.



PART 2

COD

Establishment of management periods
     3.  - (1) Management periods for an English fishing boat, as referred to in point 6(b) of Annex IVa, shall be determined and notified by the person in charge of the boat, as follows:

and they are established by that determination and notification unless point 12 of Annex IVa applies to the boat, in which case they are established by confirmation of that determination and notification by the Secretary of State for Environment, Food and Rural Affairs taking that point into account.

    (2) The person in charge of a British fishing boat may aggregate the days allocated for each calendar month as set out in point 6 of Annex IVa for being present within the area and absent from port, within management periods.

    (3) Where a management period covers the month of February - 

    (4) The person in charge of a British fishing boat which, at any time during the Annex IV year, is absent from port in the cod recovery zone carrying regulated gear for which a management period has not been established as provided in paragraph (1), or any equivalent provision, is guilty of an offence.

Absences from port
     4.  - (1) A person in charge of a relevant fishing boat carrying regulated gear which, at any time in the Annex IV year, either - 

is guilty of an offence.

    (2) In addition to the number of days of absence from port permitted under point 6(a) applicable to the relevant fishing boat in accordance with any regulated gear that it carries, for each calendar month the
Secretary of State may allocate to the boat - 

    (3) Where in respect of a management period established for it days have been transferred from one British fishing boat ("the donor") to another British fishing boat ("the recipient") under article 6 for the purposes of point 10 of Annex IVa, the following shall apply-

    (4) Where on any day during a management period any regulated gear is at any time affixed to both a relevant British fishing boat and one or more other fishing boats whilst they are in the cod recovery zone, that day shall be deducted from each boat's allocation.

    (5) Where a relevant British fishing boat was absent from port in the cod recovery zone carrying regulated gear in excess of its allocation of days in respect of a previous management period, there shall be deducted the number of days during which the boat was so absent from the next management period.

    (6) Where the management period includes the month of February, any number of days spent absent from port in the cod recovery zone carrying the regulated gear by a relevant British fishing boat in the first February stage shall be deducted from the allocation of days for that month.

    (7) Where during the management period, a relevant British fishing boat is absent from port in the circumstances as set out in point 13 of Annex IVa, the person in charge of the relevant British fishing boat shall apply to the Secretary of State for Environment, Food and Rural Affairs for an adjustment of the allocation of days in respect of those circumstances.

    (8) For the purposes of paragraph (2) and (7), where additional days are allocated by the Secretary of State to a relevant fishing boat, the allocation does not have effect until the person in charge of the relevant fishing boat is notified of the allocation by the Secretary of State.

Carriage and operation of fishing gears
     5.  - (1) The person in charge of a relevant British fishing boat which fishes or deploys regulated gear in contravention of any requirement of point 7 of Annex IVa is guilty of an offence.

    (2) Where point 7 of Annex IVa requires notification or prior notice it must, in the case of an English fishing boat, be given to the
Secretary of State for Environment, Food and Rural Affairs.

    (3) The person in charge of a relevant British fishing boat which carries fishing gear on board in contravention of point 8 or 11 of Annex IVa is guilty of an offence.

Transfer of days from one boat to another
     6.  - (1) Unused days may be transferred from one British fishing boat ("donor") to another British fishing boat ("recipient") in accordance with point 10 of Annex IVa.

    (2) A transfer under paragraph (1) is only effective if, where the donor is an English fishing boat, a written notification of transfer, signed by the donor's owner (or, as the case may be, each part owner), is sent to the
Secretary of State for Environment, Food and Rural Affairs before the end of the management period in relation to which the transfer is to take effect, and contains all the following particulars:

    (3) A person who makes a false declaration in a notification under paragraph (2) is guilty of an offence.

    (4) For the purpose of this article - 

Transport of cod
     7. Where any quantities of cod are transported in contravention of Article 15(2) of Regulation 423/04, the owner or hirer of, and the person responsible for, the vehicle used to transport the cod is guilty of an offence.

Mixing of species
     8. A person in charge of - 

on which cod is stowed or retained in contravention of Article 14 of Regulation 423/04, is guilty of an offence.

Prior notification of landing, discharge or transhipment
    
9.  - (1) The person in charge of a British or foreign fishing boat to which Article 11 of Regulation 423/04 applies, which enters a port in England without providing the information called for by that Article, is guilty of an offence.

    (2) A British sea-fishery officer may, by written or oral direction to the person in charge of a British or foreign fishing boat landing at a port in England, require that the discharge referred to in Article 11(2) of Regulation 423/04 does not commence until authorised by a British sea-fishery officer.

    (3) The person in charge of a fishing boat from which a discharge is made in contravention of any requirement under paragraph (2) is guilty of an offence.

    (4) The person in charge of a British or foreign fishing boat to which Article 11(3) of Regulation 423/04 applies, who fails to provide information as required by that article, is guilty of an offence.

    (5) For the purposes of paragraph (1) and (4), the
Secretary of State for Environment, Food and Rural Affairs is the person to whom that information is to be provided.

Landing of cod at a designated port
     10.  - (1) The person in charge of a British or foreign fishing boat which lands cod in England in contravention of Article 12 of Regulation 423/04 is guilty of an offence.

    (2) If, in the circumstances to which Article 15 of Regulation 423/04 applies, cod is first landed from a fishing boat in a port within England designated as specified in paragraph (3), the person in charge of that boat shall ensure that a representative sample, obtained in accordance with that Article, shall be weighed in the presence of a British sea-fishery officer prior to the cod being offered for first sale, unless the conditions in paragraph 3 are met.

    (3) The conditions referred to in paragraph 2 are - 

    (4) For landings in England, the ports, and where applicable the landing locations within them listed in the Schedule are designated for the purposes of Article 12 of Regulation 423/04.

    (5) The person in charge of a fishing boat from which cod is offered for first sale in contravention of paragraph 2 is guilty of an offence.

Recording information on catches of fish
     11. The person in charge of a relevant British fishing boat or foreign fishing boat in respect of which the 8% margin of tolerance referred to in Article 13 of Regulation 423/04 is exceeded, is guilty of an offence.

Maintenance of logbooks
    
12.  - (1) An entry shall be made in a logbook of any relevant British fishing boat which is absent from port (on a trip which includes any period in the cod recovery zone) carrying regulated gear but not fishing as specified in Article 6 of Regulation 2847/93, in respect of each particular gear 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 a relevant British fishing boat is absent from port and paragraph (1) 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 boat's arrival in port.

    (4) 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.



PART 3

SOLE

Establishment of management periods
     13.  - (1) Management periods for an English fishing boat, as referred to in point 6(b) of Annex IVc, shall be determined and notified by the person in charge of the boat, as follows:

and they are established by that determination and notification unless point 11 of Annex IVc applies to the boat, in which case they are established by confirmation of that determination and notification by the Secretary of State for Environment, Food and Rural Affairs taking that point into account.

    (2) The person in charge of a British fishing boat may aggregate the days allocated for each calendar month as set out in point 6 of Annex IVc for being present within the area and absent from port, within management periods.

    (3) Where a management period covers the month of February - 

    (4) The person in charge of a British fishing boat which, at any time during the Annex IV year, is absent from port in the sole recovery zone carrying regulated gear for which a management period has not been established as provided in paragraph (1), or any equivalent provision, is guilty of an offence.

Absences from port
     14.  - (1) A person in charge of a relevant fishing boat carrying regulated gear which, at any time in the Annex IV year, either

is guilty of an offence.

    (2) In addition to the number of days of absence from port permitted under point 6(a) applicable to the relevant fishing boat in accordance with any regulated gear that it carries, for each calendar month the
Secretary of State may allocate to the boat a proportion of such number of days as may be allocated to the United Kingdom under point 6(c) of Annex IVc.

    (3) Where in respect of a management period established for it days have been transferred from one British fishing boat ("the donor") to another British fishing boat ("the recipient") under article 16 for the purposes of point 9 of Annex IVc, the following shall apply-

    (4) Where on any day during a management period any regulated gear is at any time affixed to a relevant British fishing boat and one or more other fishing boats whilst they are in the sole recovery zone that day shall be deducted from each boat's allocation.

    (5) Where a relevant British fishing boat was absent from port in the sole recovery zone carrying regulated gear in excess of its allocation of days in respect of a previous management period, there shall be deducted from the next management period the number of days during which the boat was so absent.

    (6) Where the management period includes the month of February, any number of days spent absent from port in the sole recovery zone carrying the regulated gear by a relevant British fishing boat in the first February stage shall be deducted from the allocation of days for that month.

    (7) Where during the management period a relevant British fishing boat was absent from port in the circumstances as set out in point 12 of Annex IVc, the person in charge of the relevant British fishing boat shall apply to the Secretary of State for Environment, Food and Rural Affairs for an adjustment of the allocation of days in respect of those circumstances.

    (8) For the purposes of paragraph (2) and (7), where additional days are allocated by the Secretary of State to a relevant fishing boat, the allocation does not have effect until the person in charge of the relevant fishing boat is notified of the allocation by the Secretary of State.

Carriage and operation of fishing gears
     15.  - (1) The person in charge of a relevant British fishing boat which fishes or deploys regulated gear in contravention of any requirement of point 7 of Annex IVc is guilty of an offence.

    (2) Where point 7 of Annex IVc requires notification or prior notice it must, in the case of an English fishing boat, be given to the
Secretary of State for Environment, Food and Rural Affairs.

    (3) The person in charge of a relevant British fishing boat which carries fishing gear on board in contravention of point 10 of Annex IVc is guilty of an offence.

Transfer of days from one boat to another
     16.  - (1) Unused days may be transferred from one British fishing boat ("donor") to another British fishing boat ("recipient") in accordance with point 9 of Annex IVc.

    (2) A transfer under paragraph (1) is only effective if, where the donor is an English fishing boat, a written notification of transfer, signed by the donor's owner (or, as the case may be, each part owner), is sent to the
Secretary of State for Environment, Food and Rural Affairs before the end of the management period in relation to which the transfer is to take effect, and contains all the following particulars:

    (3) A person who makes a false declaration in a notification under paragraph (2) is guilty of an offence.

    (4) For the purpose of this article - 

Transport of sole
     17. Where any quantities of sole are transported, during the Annex IV year, in contravention of point 20 of Annex IVc, the owner or hirer of, and the person responsible for, the vehicle used to transport the sole is guilty of an offence.

Mixing of species
     18. A person in charge of-

on which quantities of sole greater than 50kg are stowed or retained during the Annex IV year in contravention of point 17 of Annex IVc, is guilty of an offence.

Transhipment or landing relating to third countries
    
19.  - (1) The person in charge of a British or foreign fishing boat to which point 15 of Annex IVc applies, which, during the Annex IV year, fails to provide information as required by that point, is guilty of an offence.

    (2) For the purpose of paragraph (1), the
Secretary of State for the Environment, Food and Rural Affairs is the person to whom that information is to be provided.

Weighing of sole
     20.  - (1) The person in charge of a British or foreign fishing boat shall ensure that any quantity of sole exceeding 300kg caught in the sole recovery zone shall be weighed using auction room scales in accordance with point 18 of Annex IVc.

    (2) If the person in charge of a British or foreign fishing boat fails to comply with paragraph (1) they shall be guilty of an offence.

Recording information on catches of fish
    
21. The person in charge of a relevant British fishing boat or foreign fishing boat in respect of which the 8% margin of tolerance referred to in point 16 of Annex IVc is exceeded during the Annex IV year, is guilty of an offence.

Maintenance of logbooks
    
22.  - (1) An entry shall be made in a logbook of any relevant British fishing boat which is absent from port (on a trip which includes any period in the sole recovery zone) carrying regulated gear but not fishing as specified in Article 6 of Regulation 2847/93, in respect of each particular gear 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 a relevant British fishing boat is absent from port and paragraph (1) 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 boat's arrival in port.

    (4) Where in relation to any time in the Annex IV year 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.



PART 4

ENFORCEMENT

Penalties and defence
     23.  - (1) A person guilty of an offence under Part 2 or Part 3 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 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20 or 21 of this Order or under any equivalent provision may, subject to paragraph (4), also order forfeiture of:

    (3) Any person found guilty of an offence under article 3, 4, 5, 6, 7, 8, 9, 10, 11,13, 14, 15, 16, 17, 18, 19, 20 or 21 of this Order or under any equivalent provision shall, subject to paragraph (4), also 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 the power under paragraph (2) to order forfeiture of the fish in respect of the offence was committed.

    (5) In any proceedings for an offence under article 4(1)(b) or 14(1)(b), it shall be a defence for a person to show that the number of days absent 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's fishing boat under article 6 or 16 respectively and that he did not know and had no reasonable cause to suspect that the donor was not entitled to transfer the days.

    (6) References in this article to fish in respect of which an offence was committed include fish caught at any time in the period during which the offence was committed.

Recovery of fines
     24.  - (1) Where a fine is imposed by a magistrates' court on a person in charge 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[12] (postponement of issue of, and defects in, warrants of distress) shall apply to a warrant of distress issued under this article 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 Article 95 of the Magistrate's Courts (Northern Ireland) Order 1981[13] or section 222 of the Criminal Procedure (Scotland) Act 1995[14] (both of which deal with transfer of fines from one jurisdiction to another) specifies a petty sessions area in England, this article shall apply as if the fine were imposed by a court within the petty sessions area.

Powers of British sea-fishery officers in relation to fishing boats
     25.  - (1) For the purpose of enforcing Part 2 and Part 3 of this Order or any equivalent provisions, or to operate or facilitate the operation of any monitoring deriving from Article 16 of Regulation 423/04 or point 21 of Annex IVc, 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) and, in particular - 

but nothing in sub-paragraph (e) 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, 4, 5, 8, 11, 12, 13, 14, 15, 18, 21 or 22, or under any equivalent provision, has at any time been committed in respect of a fishing boat, he may - 

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

Powers of British sea-fishery officers on land
    
26.  - (1) For the purpose of enforcing Part 2 and Part 3 of this Order or any equivalent provisions, or to operate or facilitate the operation of any monitoring deriving from Article 16 of Regulation 423/04 or point 21 of Annex IVc, 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)(a), or in respect of any vehicle which a British sea-fishery officer has reasonable cause to believe is being used to transport fish or 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 a justice of the peace on sworn information in writing is satisfied - 

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

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

under article 3, 4, 5, 7, 8, 9, 10, 11, 13, 14, 15, 17, 18, 19, 20 or 21 or under any equivalent provision.

Protection of British sea-fishery officers
    
28. A British sea-fishery officer or a person assisting him by virtue of article 25(2) or 26(1)(b) or authorisation under article 26(3), 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 25 to 27 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 British sea-fishery officers
     29.  - (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
    
30.  - (1) Where any offence under Part 2 or Part 3 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 Part 2 or Part 3 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 Part 2 or Part 3 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
     31.  - (1) Any - 

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

    (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 Regulation 2847/93.



PART 5

SUPPLEMENTARY

Consequential and connected amendments
     32. The Sea Fishing (Enforcement of Community Control Measures) Order 2000[15] is amended, so far as it applies in England, as follows:

Revocation
     33. The Sea Fishing (Restriction on Days at Sea) Order 2004[16] is revoked in so far as it applies in England;


Alun Michael
Minister of State Department for Environment, Food and Rural Affairs

25th February 2005


Ian Pearson
Parliamentary Under Secretary of State, Northern Ireland Office

24th February 2005



SCHEDULE
Article 10(4)


LIST OF PORTS (AND WHERE APPLICABLE LOCATIONS WITHIN THE PORT) IN ENGLAND AT WHICH ALL LANDINGS OF COD COVERED BY ARTICLE 12 OF REGULATION 423/04 MUST TAKE PLACE


Port Location within port (where applicable)
North Shields     
Whitby Fish quay
Scarborough West Pier
Humberside (Hull and Grimsby) Hull - North side of Albert Dock and William Wright Dock
     Grimsby - Fish Dock, Market Quay
Lowestoft Waveney Dock
Shoreham Within the confines of the harbour
Plymouth Sutton Harbour, New Fish Market
Brixham     
Newlyn     
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



EXPLANATORY NOTE

(This note is not part of the Order)


This Order provides for the administration and enforcement in England of the provisions of Annex IVa and IVc ("the Annexes") to Council Regulation (EC) No. 27/2005 (OJ No L12 14.1.2005. p.1) fixing for 2005 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 catch limitations are required. Further, the Order provides for the enforcement in England of monitoring, inspection and surveillance provisions as set out in Council Regulation (EC) No. 423/2004 (OJ No L70 9.3.2004.p.70) establishing measures for the recovery of cod stocks. Part 2 of the Order relates to Cod and Part 3 to Sole.

The Order contains provisions relating to the establishment and aggregation of management periods (articles 3 and 13 for cod and sole respectively), the number of days which a vessel may be absent from port (articles 4 and 14) , the use of regulated fishing gear (articles 5 and 15) and the manner in which days may be transferred between fishing vessels within the same management period (articles 6 and 16).

Further, the Order sets out provisions for the transportation of cod and sole (articles 7 and 17), a provision relating to the mixing of species within containers on board fishing vessels (articles 8 and 18), procedures for the landing of cod in designated and non-designated ports (articles 9 and 10), procedures for transhipment or landing sole in third countries (article 19), a margin of tolerance relating to the recording of catches of fish in logbooks (articles 11 and 21) and provisions relating to the maintenance of logbooks (articles 12 and 22).

The Order creates offences in respect of the contravention, by the person in charge of the relevant fishing boat (or the individuals otherwise specifically referred to) of provisions of the Annexes. The offences relate to absences from port without notified fishing gear (articles 3 and 13) or in excess of the days permitted (articles 4 and 14), failure to use regulated fishing gear in the manner set out in the Annexes (articles 5 and 15), giving false information when attempting to transfer days from one vessel to another (articles 6 and 16), transporting species (articles 7 and 17) or mixing of species (articles 8 and 18) in a manner inconsistent with the Annexes, the landing of cod in designated and non designated ports in contravention of notification and documentary requirements (articles 9 and 10), the transhipment or landing of sole relating to third countries (article 19) and failing to comply with the 8% tolerance for logbook records relating to catches of fish and failure to handover and dispatch logbooks in the manner prescribed (articles 11, 12, 21 and 22).

Part 4 of the Order makes provisions for enforcement. The Order provides that a person guilty of an offence under it other than an offence under article 29 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 23).

The Order also provides for the recovery of fines imposed, or treated as imposed, by a magistrates' court (article 24).

For the purposes of enforcing provisions of the Annexes for which provision is made in Parts 2 and 3 of the Order, 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 25 to 27). Protection of such officers from liability is set out in article 28, and obstructing them is an offence under article 29, with a fine of up to the statutory maximum on summary conviction and a fine on conviction on indictment. Articles 30 and 31 deal with corporate and equivalent offences and admissibility of documents in evidence. Provision for consequential amendment and revocation is made by articles 32 and 33. In addition article 32 includes a provision bringing forward the time for submission of logbook entries for landings in designated ports.

A Regulatory Impact Assessment in relation to the Annexes and this Order has been prepared and placed in the library of each House of Parliament. Copies can be obtained from Defra, Fisheries Division 1, Room 303, 10 Whitehall Place, London SW1A 2HH.


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).back

[2] 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"). By virtue of article 2(1) of the Transfer of Functions (Agriculture and Fisheries) Order 2000 (S.I. 2000/1812), remaining functions of the Secretaries of State for Scotland and Wales under section 30(2) of the 1981 Act relevant to this Order were transferred to the Minister of Agriculture, Fisheries and Food. 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).back

[3] OJ No. L12, 14.1.2005, p.1.back

[4] 1995 c.21.back

[5] 1998 c.47.back

[6] OJ No. L276, 10.10.1983, p. 1; the last amending instrument is Commission Regulation (EC) No 1965/2001 (OJ No. L268, 9.10.2001, p. 28).back

[7] OJ No. L261, 20.10.1993, p. 1; the last amending instrument is Council Regulation (EC) No 806/2003 (OJ No. L122, 16.5.2003, p. 1).back

[8] OJ No L70, 9.3.2004, p.8.back

[9] 1998 c.4; see section 126 and the Scottish Adjacent Waters Boundaries Order (S.I. 1999/1126).back

[10] 1998 c.38; see section 155.back

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

[12] 1980 c. 43. Section 78 was amended by the 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

[13] S.I. 1981/1675 (NI 26).back

[14] 1995 c.46.back

[15] S.I. 2000/51, amended by S.I. 2003/559, 2003/1535 and 2004/38.back

[16] S.I. 2004/398.back



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Prepared 7 March 2005


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