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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Southern Inshore Fisheries & Conservation Authority v Carlin Boat Charter Ltd. [2012] EWHC 1359 (Admin) (30 March 2012) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/1359.html Cite as: [2012] EWHC 1359 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		30 March 2012

1. LORD JUSTICE LAWS: This is a prosecutor's appeal by way of case stated against the decision of District Judge House at the Weymouth Magistrates' Court on 8 March 2011 to acquit the respondents of an offence of permitting the use of a vessel exceeding 12 metres in overall length from fishing or taking sea fish in a part of the Southern Sea Fisheries District which lay within a line drawn six nautical miles to seaward from the baselines in contravention of byelaw 17 of the Committee of the Southern Sea Fisheries District. The district judge held that the byelaw was unlawful as being irrational. The appellant says he was wrong to do so.
2. Byelaw 17 is set out at paragraph 1 of the stated case and provides:

"No person shall use, or permit the use of any vessel which exceeds 12 metres in overall length for fishing for or taking sea fish within any part of the District which lies within a line drawn six nautical miles to seaward from the baselines. Save that this Byelaw shall not apply:

(i) In that part of the District which lies inside a line drawn three nautical miles to seaward from baselines to any vessel over 12 metres in overall length registered with the Committee on 1 January, 1995, to fish for the purpose of sale.

(ii) In that part of District which lines between a line drawn three nautical miles to seaward from the baselines and a line drawn six nautical miles to seaward from the baselines to any vessel over 12 metres in overall length which was registered with the Committee on 27 July, 1995, to fish for the purpose of sale until:

(a) in the case of a vessel based at a port within the District boundaries, it ceases to be so based.

(b) in the case of a vessel not based in a port within the District boundaries, on change of ownership."

3. The byelaw was confirmed by the minister in its present form, as I understand it, on 13 March 1996. The enabling statute is the Sea Fisheries Regulation Act 1966. Under its powers, the minister created fisheries districts around the United Kingdom with committees regulating each fishery. The committees are empowered to make byelaws following procedures prescribed by the Sea Fisheries (Byelaws) Regulations 1985, which were made under the Act.
4. In light of one of the appellant's principal arguments, I should set out section 9(2) of the Act:

"The production of a copy of any byelaw made under this Act, purporting to be signed by a secretary or assistant secretary of the Ministry of Agriculture, Fisheries and Food, shall be conclusive evidence of the byelaw and of the due making and confirmation thereof."

5. The stated case is to say the least not happily drafted. Paragraph 2 sets out facts which the district judge found or were admitted; but other factual matters, some of central importance given the district judge's conclusions as to the validity of the byelaw, are set out later; some of them, indeed, in the body of the questions posed for the consideration of this court. The facts stated to be found or admitted are as follows (I omit certain immaterial matters):

"2. I heard the said information on 7 and 8 February and 8 March 2011 and found the following facts:

(a) At the material times the Respondent was engaged in the provision of boat charters principally to the leisure industry including chartering vessels for "Catch and Cook" Charters whereby recreational anglers would charter their vessels for the sole purpose of rod and line fishing (ie angling).

(b) The vessels operated by the Respondent, including the vessel Channel Chieftain V, were licenced and operated under the Safety of Small Commercial Motor Vessels ("SCV") Codes of Practise and were limited by law to the carriage of a maximum of 12 passengers regardless of the size of the vessel.

(c) At no time had the Respondent been involved in commercial fishing or the catching of fish for sale.

(d) The proper process for the passing of the Byelaw was followed.

(e) The following facts were the subject of admissions:

(i) The Channel Chieftain V is (at all material times):

(a) A vessel exceeding 12 metres in overall length (being approximately 14 metres in overall length)

(b) a commercial licensed passenger vessel

(ii) On 30 September 2009:

(a) Carlin Boat Charter Limited was the owner of the Channel Chieftain V

(b) The Channel Chieftain V was near 2 miles south of Shambles Bank and 4 miles from Portland and within a part of the Southern Sea Fisheries District and within 6 nautical miles to seaward of the baselines

(c) Persons on board the Channel Chieftain V were angling using rods and lines at that location

(d) Carlin Boat Charter Limited had permitted the angling at that location.

...

(iv) On 12 September 2007:

...

(c) The Channel Chieftain V was at a point about 2-3 nautical miles south east of Portland Bill and within a part of the Southern Sea Fisheries District and within 6 nautical miles to seaward of the baselines

(d) Persons on board the Channel Chieftain V were angling using rods and lines at that location

(e) The Channel Chieftain V was boarded by Fisheries Officers..."

6. The district judge proceeded to recite a good deal of the oral evidence in the case, making it clear at paragraph 2(f) that he attached no little importance to it. I must set out some of this. Mr Whitley, who had been Chief Fisheries Officer from 1988 to 2001, was called by the prosecution. The district judge says this at paragraph 2(g) of the case:

"He gave evidence, when pushed in cross-examination as follows - 'It would appear the Committee were considering a Byelaw for vessels engaged in fishing for sale. This would not affect the charter industry at all. But this was not the Byelaw subsequently made. I can only say I must have made a mistake.'

Time and again he conceded that various relevant exhibits referred to commercial fishing vessels, repeating also that some parts do not refer to charter vessels. He said - 'The question of charter vessels was not raised at the time by the charter representative on the Committee or by anyone else.' Another quote from Mr Whitley was as follows - 'It is certainly something that should have been discussed if we had thought about it. But nobody raised the issue at the time.' One further relevant quote from this witness was - 'This Ministry is only concerned with commercial fishing vessels.'"

7. Mr Whitley's successor, Mr Carrier, was also called by the prosecution. The district judge's account includes this:

"He stated he was not aware of vessels over 12 metres operating in the District in 1997. He accepted that in all relevant documents there is reference to registered fishing vessels. 'I'd agree that prevails in all documents. I am not aware the Committee have considered the impact on the charter vessels. But the Committee says it shall apply to all vessels.'

In one of the amendments to the Byelaw it looks again only at commercial vessels. Mr Carrier said 'I do not know why reference to other vessels should be omitted. I can only assume it was an oversight. I don't know the reason.' Again he said 'I've seen nothing in the Minutes that refers to charter owners in the 1990s.' Nevertheless he still insisted that the view of the Committee was that the byelaw applied to all vessels.

...

Another quote from him was 'We were not really aware we had a lot of charter vessels over 12 metres. It only came to my attention when I saw an advert for Channel Chieftain V. We thought we must look into it.' Again he stated 'The charter fleet were not on our radar. It was only when I saw the advert did I think we had a problem.'"

8. The district judge then recounted evidence given for the defence. As he observed at paragraph 2(i), the defence witnesses could only testify to their own belief as to the byelaw's application to the charter fleet. The evidence is therefore of limited value. I will cite these short passages. First Mr Carlin, who was skipper of the Channel Chieftain V in September 2007:

"He said 'I understood it (the Byelaw) did not apply to charter vessels.' He gave details of other vessels in the area which were over 12 metres and have fished as he did. He said that in the mid-eighties there were 10-12 boats over 12 metres and there were 3-4 boats over 18-20 metres.

...

After the boarding [I interpolate that is in 2007] he contacted the Poole Boatmen's Association and the Licensed Skippers Association representative. He stated 'I did this because I had always been led to believe and understood the Byelaw did not apply to charter vessels'.

...

In cross-examination he said 'I maintain the Byelaw was never designed to be used this way. It was always our understanding it was not designed to affect our Industry.' Throughout lengthy cross-examination he maintained his position making it plain he had checked with others in authority."

9. Then Mr Gibson, who was the director of the Poole Boatmen's association:

"He said 'After September 2007 I had contact with SSFC. I had had no prior dealings. I was aware there was a Byelaw. I stumbled across it in mid 2007, when I was looking for something else. It seemed to be worded for the commercial fishing vessels. I did not think any more about it. It has never been indicated to me it applied to charter. The visiting fisheries officer never mentioned it'."

10. At paragraph 6 of the stated case, the district judge concludes that the byelaw was bad as being unreasonable and says this:

"This decision was based very substantially indeed on the evidence in this case, albeit linked of course to the law, which manifestly demonstrated the fact that the SSFC, despite protesting to the contrary, had not considered the position of the charter boat section of the local fishing community at all, when drafting this Byelaw and presenting it to the Minister."

11. The district judge then sets out a large number of questions for the court. Some of these, as I have foreshadowed, indicate that he made more detailed findings of fact. These findings of fact should plainly have been set out separately from the questions. However, I shall read paragraph 7(e) which lies in the body of the questions:

"Did the Court have sufficient evidence upon which to make the following findings of fact:

(i) That Byelaw 17 when originally made by the Committee of the Southern Sea Fisheries District in 1985 was made without any consideration of the interests of a Charter Angling Fleet?

(ii) That Byelaw 17 when originally confirmed by the Secretary of State in 1985 was confirmed without any consideration of the interests of a Charter Angling Fleet?

(iii) That Byelaw 17 when amended by the Committee of the Southern Sea Fisheries District in 1990 and/or 1996 was amended without any consideration of the interests of a Charter Angling Fleet?

(iv) That the Secretary of State when he confirmed an amendment to Byelaw 17 in 1990 and/or 1996 did so without any consideration of the interests of a Charter Angling Fleet?

(v) That the intention of the Committee of the Southern Sea Fisheries District was that Byelaw 17 should apply only to commercial fishing vessels?

(vi) That the intention of the Committee of the Southern Sea Fisheries District was not reflected in its rejection in January 2008 of an amendment to Byelaw 17 which amendment would have allowed fishing by rod and line from boats over 12 metres in overall length.

(vii) That the intention of the Secretary of State was that Byelaw 17 should apply only to commercial fishing vessels."

12. Despite the serious deficiencies in the drafting of the case, the basis and scope of the district judge's conclusions are clear enough. He held that in making the byelaw originally in 1985 and later in 1990 and 1996, the committee gave no consideration at all to the interests of the charter angling fleet, and in fact intended that the byelaw should only apply to commercial fishing vessels, and the Secretary of State when he confirmed the byelaw was in the same position. Yet the byelaw on its true construction applied to charter vessels over 12 metres in length as surely as it applied to commercial fishing boats. To criminalise, as the byelaw does, conduct which the subordinate legislator had not considered and had not intended to criminalise, must be so unreasonable that no reasonable decision maker could have perpetrated such a result (see Kruse v Johnson [1898] 2 QB 1991, Wednesbury [1948] 1 KB 223 and CCSU [1985] AC 374. These are of course the classic authorities on unreasonable executive action.) The point made can perhaps more conventionally be put as a disregard of an obviously material consideration.
13. The appellant, who was represented today by Mr Weston of counsel, has responded first by submitting that the magistrates' court had no jurisdiction to entertain the submission that the byelaw was ultra vires. Reliance is placed on the district judge's finding (paragraph 2(d) of the stated case) that "the proper process for the passing of the Byelaw was followed", and also on the terms of section 9(2) of the Act which I have read. This with respect is a hopeless argument. The question is not whether the proper procedures were deployed, but whether in substance the byelaw has created a crime by mistake. Section 9(2) of the Act is obviously not an ouster clause.
14. Next it is said (see for example paragraph 42 of Mr Weston's skeleton argument) that the district judge has in some way failed to recognise that the byelaw is only given effect by the minister's confirmation. That is the effect of regulation 7(1). I do not think that the district judge made such an error. The fact that the minister confirmed the byelaw, as I understand it in the form in which the committee made it, does not cure the defect in its making by the committee, if defect there was.
15. Mr Weston submitted this morning that there is no evidence that the minister perpetuated the defect. But the minister made no amendments and did not send the byelaw back. If it was to be contended that the minister in fact considered whether after all the charter fleet ought to be covered by the byelaw's prohibition so that notwithstanding the omission of any such consideration by the committee there was positive consideration given to that issue, then in my judgment there was an evidential burden on the parties seeking to uphold the byelaw to adduce evidence to that effect.
16. Next it is said that no basis is set out by the district judge for a finding of unreasonableness, and that a finding that the committee failed to consider the interests of charter boat owners is no ground for a conclusion as such of irrationality. However, if no thought was given to the charter fleet interests and the committee only had the commercial fleet in mind, and thus only intended to cover commercial vessels, then in making the byelaw the committee must have failed to have regard to a material matter, namely the intended scope of the measure; and that is an error of law which may be categorised as, or is akin to, irrationality. The fact that Mr Carrier categorised the byelaw as the most effective conservation tool in the committee's armoury does not undermine this conclusion.
17. Mr Weston submitted that no consideration was given to the question whether at the time the byelaw was made, whether in the 1980s or the 1990s, there was a charter fleet with any interest in fishing with boats over 12 metres in the prohibited area. But he himself submitted there was a representative of the charter fleet on the committee; so there plainly was a charter fleet. The district judge recorded Mr Carlin's evidence, and I have already set it out, as including this:

"He gave details of other vessels in the area which were over 12 metres and have fished as he did. He said that in the mid-eighties there were 10-12 boats over 12 metres and there were 3-4 boats over 18-20 metres."

The district judge's conclusion was that the charter fleet's boats over 12 metres were not intended to be covered. I do not consider that further evidence was required to support that conclusion.

18. Then it is said that neither the evidence nor the district judge's findings are capable of supporting an irrationality conclusion on the merits. Mr Weston says the meaning of the byelaw is plain and the court should simply stop there. The court however is necessarily concerned in a case like this with the actual scope of the measure. Mr Weston said there is nothing irrational or apparently irrational about the prohibition as it is drawn. But that does not assist if a particular group of persons' activities were embraced within the byelaw in effect by mistake.
19. Mr Weston also submits that there was no evidence or finding to support the condemnation of the byelaw when originally made or at any specific time. But the plain effect of the district judge's decision is that in the result the byelaw was made without consideration of the charter fleet and without any intention to include their vessels over 12 metres. I should note paragraph 7(e)(vi) which I have read. There is in fact some evidence recorded by the district judge of discussions in 2007 and 2008 and a threatened judicial review, but there is in my judgment nothing which goes to show a distinct rational basis for criminalising charter vessels over 12 metres from fishing in the prohibited area.
20. In summary, notwithstanding the shortcomings of the stated case which I have criticised more than once, the district judge described evidence from Mr Whitley and Mr Carrier, and to be found in the understanding of Mr Carlin and Mr Gibson, which entitled him to conclude as he did that the committee had not considered the interests of the charter fleet in making the byelaw and had no intention that it should be covered. Indeed that conclusion is to some extent supported by the references in the byelaw itself to fishing "for the purpose of sale". The district judge's conclusions justified his holding that the byelaw could not support the prosecution because it felt that it condemned effectively as irrational, and consequently his acquittal of the respondents was properly entered.
21. It does not seem to me that it would assist if the court answers each one of the questions set out in paragraph 7 separately. I would indicate that there is really only one question here, which is whether byelaw 17 in the Southern Sea Fisheries District was irrational for want of any consideration of its potential application to the charter fleet, and I would answer that question in the affirmative. I would therefore dismiss the appeal.
22. MR JUSTICE OWEN: I agree.
23. MS BRADBURY: My Lord, Mr Carlin is not publicly funded. May I make an application for costs from central funds?
24. LORD JUSTICE LAWS: Out of central funds? That seems appropriate. I imagine you do not have anything to say about that, Mr Weston?
25. MR WESTON: No, not at all.
26. LORD JUSTICE LAWS: We will make such an order.
27. MR WESTON: In my Lord's judgment, you referred to regulation 9(2) saying it to be a regulation. It is section 9(2) of the Act.
28. LORD JUSTICE LAWS: I apologise. In that case, I stand corrected. It is in the statute, is it?
29. MR WESTON: It is in the statute.
30. LORD JUSTICE LAWS: So it is. Perhaps the shorthand writer could make a note to either correct that herself, which would be splendid, or get me to correct it when the transcript comes through. Thank you, Mr Weston. Anything else?
31. MR WESTON: I think we will consider the judgment, but nothing today.