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Statutory Instruments of the Scottish Parliament |
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You are here: BAILII >> Databases >> Statutory Instruments of the Scottish Parliament >> The Sea Fishing (Enforcement of Community Quota and Third Country Fishing Measures) (Scotland) Order 2006 No. 244 URL: http://www.bailii.org/scot/legis/num_reg/2006/20060244.html |
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Made | 9th May 2006 | ||
Laid before the Scottish Parliament | 9th May 2006 | ||
Coming into force | 31st May 2006 |
(2) In this Order, any reference to a logbook, declaration or document includes, in addition to a logbook, declaration or document in writing–
(3) In this Order, any reference–
(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 specified Community provision an indication of the subject matter of the provision) shall not be read as limiting the scope of any specified Community provision and shall be disregarded in relation to any question arising as to the construction of this Order.
(6) Column 2 of Schedule 3 (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 catches
3.
–
(1) This article applies for the purposes of Article 9.
(2) No catch that includes any unsorted fish may be landed at a harbour unless–
(3) The master, the owner and charterer (if any) of a fishing boat are each guilty of an offence if a catch that includes unsorted fish is landed from the fishing boat at a harbour before the master has received the decision of a British sea-fishery officer at the harbour in question under paragraph (2)(b)(ii).
Approval of pelagic weighing systems
4.
–
(1) The Scottish Ministers may from time to time require authorised officers to–
(2) The Scottish Ministers may approve for fisheries control purposes a pelagic weighing system in respect of which a report referred to in paragraph (1)(c) has been provided.
(3) The Scottish Ministers may decline to approve a pelagic weighing system where they have reasonable grounds for suspecting that the system may be fixed or adjusted in a way which would cause the pelagic weighing system to provide an inaccurate weight reading.
(4) The Scottish Ministers may–
(5) Where there is a contravention of, or a failure to comply with, a condition of an approval determined under paragraph (4) the owner of the pelagic weighing system, the operator of the pelagic weighing system and the owner of the premises in which the pelagic weighing system is located shall each be guilty of an offence.
(6) Where any person interferes with a pelagic weighing system approved under paragraph (2) causing the pelagic weighing system to provide an inaccurate weight reading that person shall be guilty of an offence.
(7) Any person who fails without reasonable excuse to comply with the request of an authorised officer exercising functions under paragraph (1) shall be guilty of an offence.
Weighing procedures for herring, mackerel and horse mackerel
5.
–
(1) Subject to article 6 where a fishing boat lands in excess of 10 tonnes of herring, mackerel or horse mackerel or a combination thereof within Scotland, the buyer, the agent of the buyer or the holder of the fish shall weigh the fish landed in accordance with paragraph (2) or (3) prior to the fish being sorted, processed, held in cold storage, transported from the port of landing or resold .
(2) Fish referred to in paragraph (1) which are fresh shall be weighed using a pelagic weighing system which–
(3) Fish referred to in paragraph (1) which are frozen shall be weighed in accordance with paragraph 1.8.1 or 1.8.2, Part A of Annex III.
(4) Where a buyer, agent of a buyer or a holder fails to comply with paragraphs (1) or (2) or (3) that person is guilty of an offence.
Transport of fresh fish before weighing
6.
–
(1) Fish referred to in article 5(1) which are fresh may be weighed in accordance with article 5 after being transported from the port of landing to a place of weighing which is within Scotland and not more than 100 km from the port of landing provided one of the conditions in paragraph (2) is met.
(2) The conditions are–
Approval to transport fresh fish before weighing
7.
–
(1) The buyer, the agent of the buyer or the holder of fish referred to in article 5(1) which are fresh may apply to a British sea-fishery officer at the port of landing for approval to transport the fish before weighing in accordance with article 5.
(2) Any approval issued by a British sea-fishery officer under paragraph (1) shall be subject to the conditions in paragraph (3).
(3) The conditions are–
(b) a copy of the declaration under subparagraph (a) shall be retained by the driver of the vehicle during transport of the fish and given to the receiver of the fish at the place where the fish are to be weighed.
(4) Where a person to whom an approval has been granted under paragraph (1) fails to comply with any of the conditions in paragraph (3), that person is guilty of an offence.
Vessels engaged in illegal, unreported and unregulated fisheries in the North-East Atlantic
8.
–
(1) The master, owner and any charterer of an IUU vessel are each guilty of an offence if, in relation to the vessel in question, there is a contravention of, or failure to comply with–
(2) The master, owner and charterer (if any) of a vessel, other than an IUU vessel, referred to in paragraph 13.1(b) of Annex III are each guilty of an offence if, in relation to that vessel, there is a contravention of that point.
(3) A person who contravenes paragraph 13.1(c) of Annex III is guilty of an offence.
(4) In this article, "IUU vessel" means a vessel listed in Appendix 4 to Annex III.
Offences
9.
–
(1) Where there is, in respect of–
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–
a contravention of, or failure to comply with any specified Community provision, the master, the owner and the charterer (if any) shall each be guilty of an offence.
(3) Where there is, in respect of any third country 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.
(4) Nothing in this Order shall be taken to constitute an offence to land, from a Scottish fishing boat, an unsorted catch at a harbour outwith Scotland where sampling programmes mentioned in paragraph 1 of Article 9 are in place.
Penalties
10.
–
(1) A person guilty of an offence under article 3(3) or 4(5), (6) or (7), or 5(4), or 7(4) or 8(1), (2) or (3) 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–
(2) A person guilty of an offence under article 9(1), (2) or (3), 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–
(3) A person guilty of an offence under articles 5(4) or 9(1), (2) or (3) shall also be liable to the forfeiture of any fish in respect of which the offence was committed, or, on summary conviction only, to a fine not exceeding the value of any fish in respect of which the offence was committed.
(4) A person guilty of an offence under articles 9(1), (2) or (3) shall also be liable to the forfeiture of any net or other fishing gear in respect of which the offence was committed, or which was used in committing the offence, or which was used for catching any fish in respect of which the offence was committed.
Recovery of fines
11.
–
(1) Without prejudice to the provisions of section 221 of the Criminal Procedure (Scotland) Act 1995[22], where a court has imposed a fine on any person in respect of a relevant offence or an offence under article 16, that court may for the purposes of recovering the fine–
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 (l)(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[23]or article 95 of the Magistrates' Courts (Northern Ireland) Order 1981[24]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
12.
–
(1) For the purposes of enforcement of articles 9(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 a specified Community provision, a British sea-fishery officer may exercise, in relation to–
the powers conferred by paragraphs (3), (4) and (5).
(2) For the purposes of enforcement of article 9(2) or (3), or any provision extending to any other part of the United Kingdom made for the purposes of implementing a specified Community provision or a Community third country fishing measure, a British sea-fishery officer may exercise the powers conferred by paragraphs (3), (4) and (5) in relation to any third country fishing boat within the Scottish zone.
(3) A British sea-fishery officer may go on board the boat, with or without persons assigned to assist 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.
(4) A British sea-fishery 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 purposes of enforcement referred to in paragraph (1) or (2) and, in particular, may–
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.
(5) Where it appears to a British sea-fishery officer that a relevant offence has at any time been committed the officer may–
and where such an officer detains or requires the detention of a boat the 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
13.
–
(1) For the purpose of enforcing a relevant offence any British sea-fishery officer may–
(2) The provisions of paragraph (1) shall 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 inspection.
(3) If the sheriff by information on oath–
the sheriff may by signed warrant, valid for a period of no more than one month, authorise a British sea-fishery officer to enter the premises, if need be by using reasonable force, accompanied by such persons as appear to the officer to be necessary.
Powers of British sea-fishery officers to seize fish and fishing gear
14.
–
(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
15.
A British sea-fishery officer or a person assisting such an officer by virtue of articles 12(3) or 13(l)(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 12, 13, or 14 if the court is satisfied–
Obstruction of officers
16.
–
(1) Any person who–
shall be guilty of an offence.
(2) Any person guilty of an offence under paragraph (1) shall be liable–
Offences by bodies corporate
17.
–
(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
18.
–
(1) Any–
of Regulation 2847/93[25]shall, in any proceedings for an offence under article 9(1) or 9(2), or any equivalent provision extending to any other part of the United Kingdom made for the purposes of implementing a Community quota measure or a specified Community 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 to the matters stated therein.
(2) For the purposes of paragraph (1), "required information" shall mean data relating to–
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 24 of the Council Regulation shall, in any proceedings for an offence under article 9(1), (2) or (3), or under any equivalent provision extending to any other part of the United Kingdom made for the purposes of implementing a specified Community provision or Community third country fishing measure, proceedings in respect of which were brought in Scotland by virtue of section 30(2A) of the Fisheries Act 1981[26], 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
19.
–
(1) Subject to paragraph (2), the Sea Fishing (Enforcement of Community Quota and Third Country Fishing Measures) (Scotland) Order 2005[27]("the 2005 Order") is hereby revoked.
(2) The 2005 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 2005 Order) or under article 13 of the 2005 Order.
ROSS FINNIE
A member of the Scottish Executive
St Andrew's House, Edinburgh
9th May 2006
Column 1 | Column 2 | Column 3 |
Provision of the Council Regulation | Subject matter | Maximum fine on summary conviction |
1.
Article 8.1 |
Prohibitions on retaining on board or landing catches from stocks for which total allowable catches or quotas are fixed and have been exhausted. | £50,000 |
2.
Article 8.2 |
Circumstances required for fish to be retained on board and landed where Member State has no quota or quota is exhausted. | The Statutory maximum |
3.
Article 8.5 |
Prohibition on landing catches which are unsorted and contain herring when catch limitations of a Member State are exhausted in ICES Sub-areas II (EC waters), IV and Subdivisions III(a) and VIId. | £50,000 |
4.
Article 10 |
Prohibition of fishing by Community vessels in certain Norwegian waters. | £50,000 |
5.
Articles 11 and 12 as read with– |
||
(a) paragraph 2 of Annex III |
Prohibition on the landing or retention on board of herring caught in Area IIa (EC waters). | The statutory maximum |
(b) paragraph 3 of Annex III and Appendix 1 to that Annex |
Requirements as to mesh sizes in the Skagerrak and Kattegat. | The statutory maximum |
(c) Paragraph 4.1 of Annex III, as read with paragraphs 4.3 and 4.4 of that Annex |
Prohibition on fishing activity in certain waters off the West of Scotland until 31st December 2006. | £50,000 |
(d) paragraph 5 of Annex III |
Prohibition on landing or retaining on board sandeels caught in certain waters. | £50,000 |
(e) paragraph 6 of Annex III |
Prohibition on fishing (except with longlines) in the Rockall Haddock Box. | £50,000 |
(f) paragraph 8.3 of Annex III |
Prohibition on the use of gillnets, entangling nets and trammel nets in certain waters where the charted depth is greater than 200 metres. | £50,000 |
(g) paragraph 11 of Annex III |
Prohibition on bottom trawling and fishing with static gear in certain waters. | £50,000 |
(h) paragraph 12 of Annex III |
Prohibitions relating to octopus (octopus vulgaris) weighing under 450 grammes (gutted) caught in certain waters. | The statutory maximum |
Column 1 | Column 2 | Column 3 |
Provision of Regulation 1434/98 | Subject matter | Maximum fine on summary conviction |
1.
Article 2.1 subject to the derogation in Article 8.3 of the Council Regulation |
Prohibition on retention on board of herring in certain circumstances. | The statutory maximum |
Provision of the Council Regulation | ||
2.
Articles 11 and 12 as read with– |
||
(a) paragraph 1.2.1 of Annex III |
Prohibition on landing more than 10 tonnes of herring, mackerel, horse mackerel or combination thereof taken in the specified areas other than in a designated port. | £50,000 |
(b) paragraph 1.3.1 of Annex III |
Requirements on the master to notify Fisheries Department 4 hours in advance of entering port, of the port of entry, time of arrival and quantities in kilograms live weight by species retained on board and the management area (in accordance with Annex I) where the catch was taken where landing more than 10 tonnes of herring, mackerel, horse mackerel or combination thereof. | £50,000 |
(c) paragraph 1.4.1 of Annex III |
Prohibition on landing until authorised. | £50,000 |
(d) paragraph 1.5.1 of Annex III |
Requirement to submit relevant page or pages of logbook upon arrival in port. | £50,000 |
Requirement that quantities of fish retained on board (notified in accordance with paragraph 1.3.1(c) of Annex III) are equal to the quantities of fish recorded in completed logbook, subject to a permitted margin of tolerance of 8% . | £50,000 | |
(e) paragraph 1.6 of Annex III |
Requirement that when determining weight any deduction made for water must not exceed 2% . | £50,000 |
(f) paragraph 1.9 of Annex III |
Requirement to submit documents to a British sea- fishery officer. | £50,000 |
(g) paragraph 1.10.1 of Annex III |
Requirements to issue weighing slips and to attach such slips to sales notes or take-over declarations when weighing facilities used are publicly operated. | £50,000 |
(h) paragraph 1.10.2 of Annex III |
Requirements to keep and record information in a paginated weighing logbook where privately operated weighing facilities are used. Requirement to keep logbook and written declarations for three years. | £50,000 |
Column 1 | Column 2 | Column 3 |
Provision of the Council Regulation | Subject matter | Maximum fine on summary conviction |
1.
Article 14 |
Requirement in relation to vessels flying the flag of Norway or the Faroe Islands to fish within the geographical zone set out in Article 14(1). | £50,000 |
2.
Article 16 |
Requirement in relation to vessels flying the flag of Norway or the Faroe Islands to fish within the quota limits contained in Annex I. | £50,000 |
3.
Article 19.1 |
Requirement in relation to vessels flying the flag of Norway (other than those of less than 200 GT) or the Faroe Islands to hold licence and special fishing permit and observance of conditions thereof. | £50,000 |
4.
Article 24.1 |
Requirement in relation to vessels flying the flag of Norway or the Faroe Islands to comply with the conservation and control measures and all other provisions governing fishing by Community vessels in the zones concerned, including those measures and provisions referred to in Article 24. | £50,000 |
5.
Article 24.2 |
Requirement in relation to vessels flying the flag of Norway or the Faroe Islands to keep a logbook in compliance with Part I of Annex V. | £50,000 |
6.
Article 24.3 |
Requirement in relation to vessels flying the flag of Norway (other than those fishing in ICES Division IIIa) or the Faroe Islands to transmit information in compliance with Annex VI. | The statutory maximum |
7.
Paragraph 7(a) of Annex VI |
Requirement as regards vessels with catch on board to obtain authorisation before commencing fishing for blue whiting. | £50,000 |
8.
Paragraph 7(c) of Annex VI |
Requirements as regards vessels fishing for blue whiting leaving Community waters. | £50,000 |
[2] O.J. No. L 16, 20.1.06, p.1.back
[3] O.J. No. L 191, 7.7.98, p.10.back
[4] O.J. No. L 349, 31.2.05, p.1.back
[6] O.J. No. L 261, 20.10.93, p.1.back
[7] O.J. No. L 301, 14.12.95, p.1.back
[8] O.J. No. L 301, 14.12.95, p.35.back
[9] O.J. No. L 338, 28.12.96, p.12.back
[10] O.J. No. L 102, 19.4.97, p.1.back
[11] O.J. No. L 202, 30.7.97, p.18.back
[12] O.J. No. L 304, 7.11.97, p.l.back
[13] O.J. No. L 356, 31.12. 97, p.14.back
[14] O.J. No. L 358, 31.12. 98, p.5.back
[15] O.J. No. L 122, 16.5.03, p.1.back
[16] O.J. No. L 289, 7.11.03, p.1.back
[17] 1981 c.29; section 30(2A) was inserted by S.I. 1999/1820.back
[20] The sea within British fishery limits (that is, the limits set by or under section 1 of the Fishery Limits Act 1976 (c.86)) which is adjacent to Scotland is determined by the Scottish Adjacent Waters Boundaries Order 1999 (S.I. 1999/1126).back
[25] O.J. No. L 261, 20.10.93, p.1.back
[26] 1981 c.29; section 30(2A) was inserted by S.I. 1999/1820.back