Citation, commencement and extent

1.–(1) This Order may be cited as the Sea Fishing (Control Procedures for Herring, Mackerel and Horse Mackerel) (Scotland) Order 2008 and comes into force on 1st April 2008.

(2) Subject to paragraph (3), this Order extends to Scotland and the Scottish zone only.

(3) Insofar as it extends beyond Scotland and the Scottish zone, it does so only as a matter of Scots law.

Interpretation

2.–(1) In this Order-

"authorised officer" means a person authorised by the Scottish Ministers for the purpose of article 3(1);

"Community fishing boat" means a fishing boat flying the flag of and registered in a Member State of the European Community;

"the Commission Regulation" means Commission Regulation (EC) No 1542/2007 of 20th December 2007 on landing and weighing procedures for herring, mackerel and horse mackerel;

"fishery product" includes fish;

"pelagic weighing system" means any system used to weigh herring, mackerel or horse mackerel for the purposes of the Commission Regulation;

"Regulation 2847/93" means Council Regulation (EEC) No. 2847/93 of 12th October 1993 establishing a control system applicable to the common fisheries policy(5);

"relevant offence" means an offence under-

"Scotland" has the same meaning as in section 126(1) of the Scotland Act 1998(7);

"Scottish fishing boat" means a fishing vessel which is registered in the register maintained under section 8 of the Merchant Shipping Act 1995(8) and whose entry in the register specifies a port in Scotland as the port to which the vessel is to be treated as belonging;

"Scottish zone" has the same meaning as in section 126(1) of the Scotland Act 1998(9);

"specified Community provision" means a provision of the Commission Regulation specified in column 1 of the Schedule as read with any qualifying words relating to the provision in that column; and

"third country fishing boat" means a fishing boat flying the flag of and registered in a State other than a Member State.

(2) In this Order, any reference to a logbook, declaration or document includes, in addition to a logbook, declaration or document in writing any-

(a) map, plan, graph or drawing;

(b) photograph;

(c) data, however reproduced, communicated via a satellite based vessel monitoring system established under Article 3.1 of Regulation 2847/93;

(d) disk, tape, sound track or other device on which sounds or other data (not being visual aids) are recorded so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and

(e) film (including microfilm), negative, tape, disk or other device on which one or more visual images are recorded so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom.

(3) In this Order, any reference to a-

(a) numbered article is a reference to the article so numbered in this Order;

(b) numbered paragraph is a reference to the paragraph so numbered in the article in which it appears in this Order;

(c) Schedule is a reference to the Schedule to this Order; and

(d) numbered Article or Annex is, except where otherwise indicated, a reference to the Article or Annex so numbered in the Commission Regulation.

(4) Column 2 of the Schedule (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.

(5) Any reference in this Order to the Commission Regulation is a reference to that Regulation as amended from time to time.

Approval of pelagic weighing systems

3.–(1) The Scottish Ministers may from time to time require authorised officers to-

(a) conduct any tests necessary to calibrate any pelagic weighing system;

(b) provide them with advice on the sealing of any pelagic weighing system which shall include advice on whether the system can be fixed or adjusted in a way which would cause the pelagic weighing system to provide an inaccurate weight reading and, if so, how the system may be fixed or adjusted; and

(c) provide them with a report relating to the suitability of any pelagic weighing system.

(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-

(a) determine conditions to which an approval given under paragraph (2) may be subject; and

(b) at any time amend such conditions.

(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

4.–(1) Subject to article 5, 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 has been-

(a) approved for fisheries control purposes by the Scottish Ministers under article 3(2); or

(b) passed as fit for trade use in accordance with regulation 15 of the Weighing Equipment (Beltweighers) Regulations 2001(10).

(3) Fish referred to in paragraph (1) which are frozen shall be weighed in accordance with Article 11 of the Commission Regulation.

(4) Where a buyer, agent of a buyer or a holder of the fish fails to comply with paragraph (1) or (2) or (3) that person is guilty of an offence.

Weighing of fresh fish after transport

5.–(1) Fish referred to in article 4(1) which are fresh may be weighed in accordance with article 4 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-

(a) the vehicle in which the fish are transported is accompanied by a British sea fishery officer from the port of landing to the place where the fish are weighed; or

(b) the fish are being transported in accordance with an approval issued under article 6.

Approval to weigh fresh fish after transport

6.–(1) The buyer, the agent of the buyer or the holder of fish referred to in article 4(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 4.

(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-

(a) immediately prior to the vehicle in which the fish are being transported leaving the port of landing, the buyer or agent of the buyer or the holder of the fish shall provide to a British sea fishery officer at the port of landing a declaration which shall be-

(i) in accordance with Article 7.3(a) of the Commission Regulation; and

(ii) signed by the buyer or agent; and

(b) Article 7.3(b) of the Commission Regulation is complied with.

(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.

Offences

7. Where there is, in respect of any-

(a) Scottish fishing boat wherever it may be; or

(b) Community fishing boat or third country fishing boat within the Scottish zone,

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.

Penalties

8.–(1) A person guilty of an offence under article 3(5), (6) or (7), or 4(4), or 6(4) 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-

(a) on summary conviction, to a fine not exceeding £50,000; and

(b) on conviction on indictment, to a fine.

(2) A person guilty of an offence under article 7, 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-

(a) on summary conviction, to a fine not exceeding the amount specified in column 3 of the Schedule in relation to the specified Community provision the contravention of which, or failure to comply with, founded the offence; and

(b) on conviction on indictment, to a fine.

(3) A person guilty of an offence under article 4(4) or 7 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 article 7 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

9.–(1) Without prejudice to the provisions of section 221 of the Criminal Procedure (Scotland) Act 1995(11), where a court has imposed a fine on any person in respect of a relevant offence or an offence under article 14, that court may for the purposes of recovering the fine-

(a) order any boat involved in the commission of the offence and its gear and catch to be detained for a period not exceeding 3 months from the date-

(i) of the conviction or until the fine is paid;

(ii) the order is renewed for a further period (not exceeding 3 months); or

(iii) on which a warrant is issued under sub paragraph (b), 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(12) or article 95 of the Magistrates' Courts (Northern Ireland) Order 1981(13) 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

10.–(1) For the purposes of enforcement of article 7, or any provision extending to any other part of the United Kingdom made for the purposes of implementing a specified Community provision, a British sea fishery officer may exercise, in relation to any-

(a) Scottish fishing boat wherever it may be;

(b) Community fishing boat within the Scottish zone; or

(c) third country fishing boat within the Scottish zone,

the powers conferred by paragraphs (2), (3) and (4);

(2) 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.

(3) 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) and, in particular, may-

(a) search for fishery products or fishing gear on the boat and may examine any such products on the boat and the equipment of the boat, including the fishing gear and require persons on board the boat to do anything which appears to that officer to be necessary for facilitating the examination;

(b) require any person on board the boat to produce any document relating to the boat, to any fishing operations ancillary thereto or to the persons on board which is in the custody or possession of that person;

(c) for the purpose of ascertaining whether a relevant offence has been committed, search the boat for any such document and may require any person on board the boat to do anything which appears to that officer to be necessary for facilitating the search;

(d) inspect, take copies of and retain in the possession of that officer while any search, examination or inspection provided for under this article is being carried out, any such document produced to that officer or found on board;

(e) require the master or any person for the time being in charge of the boat to render all such documents on a computer system into visible and legible form and to produce them in a form in which they may be taken away; and

(f) where the boat is one in relation to which that officer has reason to suspect that a relevant offence has been committed, seize and detain any such document produced to that officer or found on board, for the purpose of enabling the document to be used as evidence in proceedings for the offence,

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

(4) Where it appears to a British sea fishery officer that a relevant offence has at any time been committed the officer may-

(a) take, or require the master of the boat in relation to which the offence took place to take, the boat and its crew to the port which appears to the officer to be the nearest convenient port; and

(b) detain or require the master to detain the boat in the port,

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

11.–(1) For the purpose of enforcing a relevant offence any British sea fishery officer may-

(a) enter and inspect at any reasonable time any premises used for carrying on any business in connection with the operation of fishing boats or activities connected therewith or ancillary thereto or with the treatment, storage or sale of fishery products;

(b) take with the officer such other persons as appear to the officer to be necessary and any equipment or materials;

(c) examine any fishery product on the premises and require persons on the premises to do anything which appears to that officer to be necessary for facilitating the examination;

(d) carry out at such premises such other inspections or tests as may reasonably be necessary;

(e) require any person not to remove or cause to be removed any fishery product from such premises for such a period as may be reasonably necessary for the purposes of establishing whether a relevant offence has at any time been committed;

(f) require any person on the premises to produce any documents which are in the custody or possession of that person relating to the catching, landing, transportation, transhipment, sale or disposal of any fishery product;

(g) for the purpose of ascertaining whether a relevant offence has been committed, search the premises for any such document and may require any person on the premises to do anything which appears to that officer to be necessary for facilitating the search;

(h) inspect and take copies of any such document produced or found on the premises;

(i) require any appropriate or responsible person to render any such documents on a computer system into a visible and legible form and to produce them in a form in which they may be taken away; and

(j) if the officer has reason to suspect that a relevant offence has been committed, seize and detain any such document produced or found on the premises, for the purposes of enabling the document to be used as evidence in proceedings for the offence.

(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 is-

(a) satisfied that there are reasonable grounds to believe that any documents or other items which a British sea fishery officer has power under this article to inspect are on any premises and that their inspection is likely to disclose evidence of the commission of a relevant offence; and

(b) also satisfied either-

(i) that admission to the premises has been or is likely to be refused and that notice of intention to apply for a warrant has been given to the occupier; or

(ii) that an application for admission or the giving of such notice would defeat the object of the entry; or

(iii) that the premises are unoccupied or the occupier is temporarily absent and it might defeat the object of the entry to await return of the occupier,

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

12.–(1) Any British sea fishery officer may seize-

(a) in Scotland or in the Scottish zone; or

(b) on a Scottish fishing boat wherever it may be,

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-

(a) any fishery product (including any receptacle which contains such product), in respect of which the officer has reasonable grounds to suspect that a relevant offence has been committed; and

(b) any net or other fishing gear which the officer has reasonable grounds to suspect has been used in the commission of such offence.

Protection of officers

13. A British sea fishery officer or a person assisting such an officer by virtue of article 10(2) or 11(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 10, 11, or 12 if the court is satisfied that-

(a) the act was done in good faith;

(b) there were reasonable grounds for doing it; and

(c) it was done with reasonable skill and care.

Obstruction of officers

14.–(1) Any person who-

(a) fails without reasonable excuse to comply with any requirement imposed by a British sea fishery officer under the powers conferred on such officers by article 10 or 11;

(b) without reasonable excuse prevents, or attempts to prevent, any other person from complying with such requirement; or

(c) obstructs any such officer in the exercise of any of those powers or the powers conferred by article 12, shall be guilty of an offence.

(2) Any person guilty of an offence under paragraph (1) shall be liable-

(a) on summary conviction, to a fine not exceeding the statutory maximum; or

(b) on conviction on indictment, to a fine.

Offences by bodies corporate

15.–(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

16.–(1) Any-

(a) logbook kept under Article 6, 17.2 or 28c;

(b) declaration submitted under Article 8.1, 11, 12, 17.2 or 28f;

(c) effort report completed under Articles 19b and 19c;

(d) sales note submitted under Article 9;

(e) document drawn up under Article 13; or

(f) document containing required information received by a fisheries monitoring centre established under Article 3.7,

of Regulation 2847/93(14) shall, in any proceedings for an offence under article 7, or any equivalent provision extending to any other part of the United Kingdom made for the purposes of implementing 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-

(a) a fishing boat´s identification;

(b) the most recent geographical position of the fishing boat expressed in degrees and minutes of longitude and latitude; and

(c) the date and time of the fixing of that position,

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 any enforceable Community obligation shall, in any proceedings for an offence under article 7, or under any equivalent provision extending to any other part of the United Kingdom made for the purposes of implementing a specified Community provision, proceedings in respect of which were brought in Scotland by virtue of section 30(2A) of the Fisheries Act 1981(15), 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.

(4) In this article "enforceable Community obligation" means an obligation to which section 2(1) of the European Communities Act 1972(16) applies.

Amendment of the Sea Fishing (Enforcement of Community Quota and Third Country Fishing Measures) (Scotland) Order 2007

17. The Sea Fishing (Enforcement of Community Quota and Third Country Fishing Measures) (Scotland) Order 2007(17) is amended as follows-

(a) in article 2(1)-

(i) delete the definitions of "authorised officer", "pelagic weighing system", "Regulation 1434/98" and "specified Community provision"; and

(ii) in the definition of "relevant offence", in paragraph (a) delete ",(2)" where it appears after "11(1)".

(b) delete articles 2(5), 4, 5, 6, 7, 11(2) and Schedule 2;

(c) in article 12(2), 12(3) and 12(4), delete ", (2)";

(d) in article 14(1) delete "or (2),";

(e) in article 14(2) delete "(2) or";

(f) in article 20(3) delete ", (2)".

articles 2(1) and (4), 7 and 8(2)

SCHEDULE SPECIFIED COMMUNITY PROVISIONS (MAXIMUM FINES ON SUMMARY CONVICTION)

Explanatory Note

(This note is not part of the Order)

This Order implements Commission Regulation (EC) No. 1542/2007 on landing and weighing procedures for herring, mackerel and horse mackerel ("the Commission Regulation"). In exercise of powers introduced by the Legislative and Regulatory Reform Act 2006, references to the Commission Regulation are to that instrument as it may be amended from time to time.

The Order makes provision for the Scottish Ministers to approve pelagic weighing systems for fisheries control purposes (article 3).

The Order provides that where over 10 tonnes of herring, mackerel or horse mackerel is landed in Scotland buyers or holders of the fish must weigh fresh fish using a pelagic weighing system which is approved by the Scottish Ministers or which has been passed as fit for trade use in accordance with the Weighing Equipment (Beltweighers) Regulations 2001. Frozen fish must be weighed in accordance with Article 11 of the Commission Regulation. Failure to comply with any of those provisions is an offence (article 4).

Article 4 of the Order is subject to article 5. Article 5 implements the derogation in Article 11 of the Commission Regulation. It allows fresh fish to be transported before being weighed from the port of landing to a place not more than 100 km from the port of landing provided the vehicle in which the fish is transported is accompanied by a British sea fishery officer or an approval has been granted in accordance with article 6 of the Order (article 5).

Article 6 sets out the conditions to which an approval is subject, by reference to the requirements in Article 7.3 of the Commission Regulation. Article 7.3(a) of the Commission Regulation requires a written declaration giving the species of fish and the name of the vessel from which it has been discharged, the unique identity number of the tanker in which it is to be transported and details of the destination where the fish will be weighed. The declaration must include the date and time as well as the estimated time of arrival of the tanker at the destination. Article 7.3(b) provides that a copy of the declaration must be kept by the driver during the transport of the fish and handed over to the receiver of the fish at the destination. Failure to comply with the conditions is an offence.

The Order creates offences in respect of contraventions of the provisions of the Commission Regulation referred to in column 1 (and briefly described in column 2) of the Schedule to the Order (article 7).

Article 8 of the Order provides penalties in relation to an offence under article 3(5) to (7), or 4(4) or 6(4) or 7 of the Order or 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 (c. 29). The Order also makes provision for additional penalties such as forfeiture. The Order makes provision in relation to the recovery of fines imposed in respect of such offences or an offence under article 14 (obstruction of officers) (article 9).

The Order confers on British sea fishery officers powers of enforcement in relation to fishing boats and on land. These include power 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 10, 11 and 12).

Provision is also made in relation to the liability of officers for anything done in the purported exercise of powers conferred by the Order (article 13). The Order creates offences and provides penalties in respect of the obstruction of a British sea fishery officer and makes provision in relation to offences committed by bodies corporate and partnerships and the admissibility of certain documents (articles 14, 15 and 16).

The Order revokes the articles of the Sea Fishing (Enforcement of Community Quota and Third Country Fishing Measures) (Scotland) Order 2007 which make provision in relation to the weighing and landing of herring, mackerel and horse mackerel (article 17).

A Regulatory Impact Assessment in relation to this Order has been prepared and placed in SPICE. Copies can be obtained from the Scottish Government Marine Directorate, Pentland House, Robbs Loan, Edinburgh EH14 1TY.