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SCOTTISH STATUTORY INSTRUMENTS


2003 No. 56

SEA FISHERIES

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

  Made 31st January 2003 
  Laid before the Scottish Parliament 4th February 2003 
  Coming into force 1st February 2003 

The Scottish Ministers, in exercise of the powers conferred by section 30(2) of the Fisheries Act 1981[1] and of all other powers enabling them in that behalf, hereby make the following Order:

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

    (2) Subject to paragraph (3), this Order shall extend to Scotland and the Scottish Zone, and insofar as it extends beyond Scotland and the Scottish Zone, it does so only as a matter of Scots law.

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

Interpretation
    
2.  - (1) In this Order-

    (2) In this Order, "logbook" has the same meaning as in paragraph 18 of Annex XVII but, for the purposes of any provision of this Order, other than article 6 and 11, any reference to a document, logbook or declaration includes, in addition to a document, logbook or declaration in writing-

    (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.

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

is guilty of an offence.

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

subject to paragraph (8), double the number ascertained in accordance with paragraph 6 as read with paragraph 9 of Annex XVII and applicable to the vessel in accordance with any fishing gear it carries,

    (3) In relation to any relevant British fishing boat and in respect of the type of fishing gear it may carry, for each calendar month there is added to the basic number, such number of days (if any) as may be allocated to the United Kingdom under paragraph 6(b) and (c) of Annex XVII for the purpose of being such an addition.

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

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

    (6) Where during any period fishing gear is affixed to two or more fishing boats there shall be deducted from the basic number for each such boat that is a relevant British fishing boat in relation to that gear and that period a number of days equal to the number when it was absent from port but the gear was being carried by any other such boat.

    (7) Where during any period a relevant British fishing boat has-

the Scottish Ministers may deduct from its basic number for the next period a number equal to the number of days in that excess.

    (8) Notwithstanding paragraph (2), the number of days in the relevant period, in respect of the gear specified at paragraph 4(a) of Annex XVII, shall (for the purposes of articles 5 and 6) expressly not exceed the number of days determined in accordance with paragraph 6 of Annex XVII.

    (9) In paragraph (8), "the relevant period" means-

    (10) In any proceedings for an offence under paragraph 3(1)(b) of this article, it shall be a defence for a person to show that the number of days of absence from port carrying any type of fishing gear comprising the offence was no greater than the number of days of absence carrying that gear purportedly but not validly transferred to that person under article 6 and that person did not know and had no reasonable cause to suspect that the donor was not entitled to transfer the days.

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

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

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

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

    (2) Where the donor is a relevant British fishing boat, a notification of transfer must-

    (3) A transfer is not permitted, except on cause shown to the satisfaction of the Scottish Ministers, if-

    (4) If, before 1st February 2003, a logbook has not been submitted in respect of the donor containing an entry showing that it was fishing in any of the areas specified in paragraph 2 of Annex XVII with a type of fishing gear specified in paragraph 4 of Annex XVII at any time during the years 2001 or 2002, then a transfer is not permitted.

    (5) The number of days transferred in a specified period is whichever is the fewer of-

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

Amendment of the Sea Fishing (Enforcement of Community Control Measures) (Scotland) Order 2000
     7. The Sea Fishing (Enforcement of Community Control Measures) (Scotland) Order 2000[10] is amended as follows:-

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

    (2) The ports designated for the purposes of paragraph 14 of Annex XVII (landing of cod in excess of 2 tonnes) are the ports specified in the Schedule to this Order.

    (3) Where there is, in respect of a relevant British fishing boat or a foreign fishing boat landing in Scotland, a failure to comply with, or with a requirement given under, paragraph 13 of Annex XVII the master, the representative of the master, the owner and the charterer (if any) are guilty of an offence.

    (4) A person in charge of a relevant British fishing boat or a foreign fishing boat which lands cod in contravention of paragraph 14 of Annex XVII, as read with paragraph (2) of this article, is guilty of an offence.

Mixing of species
    
9. A person in charge of a relevant British fishing boat or a foreign fishing boat within the Scottish Zone which retains species in contravention of paragraph 17 of Annex XVII (retention on board of cod) is guilty of an offence.

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

Maintenance of logbook
    
11.  - (1) An entry shall be made in the logbook of a relevant British fishing boat which is-

in respect of every such absence.

    (2) Such an entry shall be made-

    (3) Where there is, in respect of a relevant British fishing boat, a failure to make an entry required by this article the person in charge of that fishing boat is guilty of an offence.

Penalties
    
12.  - (1) A person guilty of an offence under article 3(1), 6(6), 8 or 9 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 articles 8 or 9 may order the forfeiture of-

    (3) Any person found guilty of an offence under article 3(1), 8 or 9 or under any equivalent provision shall, subject to the following provisions of this article, be liable on summary conviction to a fine not exceeding the value of the fish in respect of which the offence was committed.

    (4) A person shall not be liable to a fine under paragraph (3) in respect of such an offence if, under paragraph (2), the court orders the forfeiture of the fish in respect of which that offence was committed; and where a fine is imposed under paragraph (3) in respect of any offence, the court shall not have power under paragraph (2) to order the forfeiture of the fish in respect of which the offence was committed.

    (5) Subject to paragraph (4), any fine to which a person is liable under paragraph (3) shall be in addition to any other penalty (whether pecuniary or otherwise) to which that person is liable in respect of that offence under this article or under any other enactment.

Recovery of fines
    
13.  - (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 11, that court may for the purposes of recovering the fine-

    (2) The court shall not issue a warrant under paragraph (1)(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
     14.  - (1) For the purpose of enforcing articles 3 to 9 and 11 of this Order or any equivalent provisions or to facilitate the cross-checking provided for in paragraph 18 of Annex XVII, any British sea-fishery officer may exercise the powers conferred by this article in relation to-

    (2) The officer may go on board the boat, with or without persons assigned to assist the officer 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) The 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 purpose mentioned in paragraph (1) of this article and, in particular-

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 an offence under article 3(1), 8, 9 or 11 of this Order or any equivalent provision has at any time been committed, that officer-

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

Powers of British sea-fishery officers on land
    
15.  - (1) For the purpose of enforcing articles 3 to 10 of this Order or any equivalent provisions or to facilitate the cross-checking provided for in paragraph 18 of Annex XVII, any British sea-fishery officer may-

    (2) The provisions of paragraph (1) shall also 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 the inspection.

    (3) If a sheriff by information on oath is satisfied-

Powers of British sea-fishery officers to seize fish and fishing gear
    
16.  - (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
    
17. A British sea-fishery officer or a person assisting such an officer by virtue of articles 14(2) or 15(1)(b) or an authorisation under article 15(3) of this Order shall not be liable in any civil or criminal proceedings for anything done in the purported exercise of the powers conferred by articles 14 and 15 of this Order if the court is satisfied-

Obstruction of officers
    
18.  - (1) Any person who-

is guilty of an offence.

    (2) A person guilty of an offence under paragraph (1) is liable-

Provisions as to offences
    
19.  - (1) Where any offence under articles 3(1), 6(6), 8, 9, 10 or 11 of this Order committed by a body corporate or 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 director, manager, secretary or other similar officer of the body corporate, or a person 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 the offence and 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 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.

    (3) Where any offence under article 3(1), 6(6), 8, 9, 10 or 11 of this Order 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, that person as well as the association shall be guilty of the offence and liable to be proceeded against and punished accordingly.

Admissibility in evidence of logbooks and other documents
    
20.  - (1) Any-

of Council Regulation (EC) No. 2847/93 of 12th October 1993 (establishing a control system applicable to the Common Fisheries Policy, as last amended by Council Regulation (EC) No. 2846/98 of 17th December 1998) shall, in any proceedings in Scotland for an offence under this Order or any equivalent 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 the matters stated therein.

    (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 Council Regulation (EC) No. 2847/93.


ROSS FINNIE
A member of the Scottish Executive

Pentland House, Edinburgh
31st January 2003



SCHEDULE
Article 8(2)


LIST OF PORTS (AND WHERE APPLICABLE LOCATIONS WITHIN THE PORT) AT WHICH MORE THAN 2 TONNES OF COD TAKEN FROM THE WATERS COVERED BY THE NORTH SEA AND WEST OF SCOTLAND COD RECOVERY ZONES MUST BE LANDED



ENGLAND AND WALES
Port Location within port (where applicable)
North Shields     
Hartlepool Fish quay in Victoria Dock
Whitby Fish quay
Scarborough West Pier
Humberside (Hull and Grimsby) Hull - North side of Albert Dock & William Wright Dock

Grimsby - Fish Dock, Market Quay

Lowestoft Waveney Dock
Ramsgate Harbour
Shoreham Within the confines of the harbour
Plymouth Sutton Harbour, New Fish Market
Brixham     
Newlyn     
Padstow     
Milford Haven     
Holyhead Fish Dock
Whitehaven North Harbour on the Old North Wall Quay next to the Ice Plant and on the North Wall Quay next to the Fish Handling Facility building
Fleetwood Wyre Fish Dock


SCOTLAND
Eyemouth     
Pittenweem     
Aberdeen Palmerston Quay & Commercial Quay
Peterhead Peterhead Harbour excluding Peterhead Bay Harbour
Fraserburgh     
Buckie     
Lerwick All piers, quays and docks within harbour limits excluding those in Dales Voe
Scalloway     
Kirkwall     
Scrabster     
Kinlochbervie All quays lying to the North of the ice factory quay.
Lochinver     
Ullapool     
Stornoway     
Portree     
Mallaig     
Oban     
Campbeltown     
Troon     


NORTHERN IRELAND
Ardglass     
Portavogie     
Kilkeel     
Bangor     



EXPLANATORY NOTE

(This note is not part of the Order)


This Order provides for the enforcement in Scotland of the provisions of Annex XVII ("the Annex") to Council Regulation 2341/2002 (O.J. No. L 356, 31.12.02, p.12) ("the Council Regulation") fixing for certain fish stocks and groups of fish stocks the fishing opportunities in Community waters for 2003.

The Order contains provisions relating to the calculation of the number of days on which a vessel may be absent from port for the purposes of the Annex (article 3(2) to (7)) and makes clear, in particular in relation to the types of gear at paragraph 4(a) of the Annex, that the number of fishing days available cannot exceed the total calculated under paragraph 6 of the Annex (article 3(8)). It also contains provisions relating to absence from port in specified circumstances (article 4) and the transfer of days from one period to another (article 5) and from one vessel to another (article 6).

By virtue of article 8(2), the ports named in the Schedule are designated, for the purposes of paragraph 14 of the Annex.

The Order creates offences in respect of contraventions, by a person in charge of a relevant British fishing boat (as defined in the Order), of the provisions of paragraphs 6 (absence from port in excess of number of permitted days), 7 (single type of gear), 8 (use of gear in different areas) and 9 (use of gears in different periods) of the Annex (article 3(1)).

The Order also creates offences in respect of contraventions by certain persons of other provisions of the Annex (articles 8, 9, 10 and 11) and in respect of the making of a false statement by any person in a notification under article 6(2) (article 6(6)) and extends the application of the Sea Fishing (Enforcement of Community Control Measures) (Scotland) Order 2000 (S.S.I. 2000/7) in pursuance of the Annex (article 7).

The Order provides for the recovery of fines imposed in respect of a relevant offence as defined in the Order (article 13).

For the purposes of enforcing provisions of the Annex the Order confers on British sea-fishery officers the powers to enter premises, to go on board fishing boats, to stop and search vehicles transporting fish, to examine fish, to require the production of documents, to search for and seize documents, to take a boat to the nearest convenient port and to seize fish and fishing gear (articles 14 to 17).

A Regulatory Impact Assessment in the relation to the Annex has been prepared and placed in SPICE. Copies can be obtained from the Scottish Executive Environment and Rural Affairs Department, Robb's Loan, Edinburgh, EH14 1TY.


Notes:

[1] 1981 c.29; relevant modifications are contained in the Scotland Act 1998 (Functions exercisable in or as Regards Scotland) Order 1999 (S.I. 1999/1748), article 5 and the Scotland Act 1998 (Modifications of Functions) Order 1999 (S.I. 1999/1756) articles 3, 5 and 6. The functions of the Secretary of State were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998 (c.46). See section 30(3) for a definition of "the Ministers". Section 30(2) has effect in relation to Scotland as modified by section 30(5). Section 30(5) was inserted by the Scotland Act 1999 (Consequential Modifications) (No. 2) Order (S.I. 1999/1820), Schedule 2, paragraph 68.back

[2] O.J. No. L 356, 31.12.02, p.12.back

[3] 1995 c.21.back

[4] 1967 c. 84. Section 4 was amended by the Fishery Limits Act 1976 (c.86), section 3, the Fisheries Act 1981 (c.29), section 20 and the Sea Fish (Conservation) Act 1992 (c.60), section 1 and has effect in relation to Scotland as modified by section 22A inserted by the Scotland Act 1998 (Consequential Modifications) (No. 2) Order 1999 (S.I. 1999/1820), Schedule 2, paragraph 43(13).back

[5] 1998 c.46.back

[6] O.J. No. L 261, 20.10.93, p.1.back

[7] O.J. No. L 358, 31.12.98, p, 5.back

[8] O.J. No. L 337, 30.12.99, p. 10.back

[9] O.J. No. L 358, 31.12.02, p. 49.back

[10] S.S.I. 2000/7.back

[11] 1995 c.46.back

[12] 1980 c.43.back

[13] S.I. 1981/1675.back



ISBN 0 11061978 1


 
© Crown copyright 2003
Prepared 12 February 2003


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