Sea Fisheries (Shellfish) Act 1967

Fisheries for shellfishE+W+S

1 Power to make orders as to fisheries for shellfish. E+W+S

(1)Subject to the provisions of this section, the appropriate Minister may, on an application made to him in accordance with subsection (2) of this section, by order provide for the establishment or improvement, and for the maintenance and regulation, of a fishery for [F1 shellfish of any kind specified in the order ], on any portion of the shore and bed of the sea, or of an estuary or tidal river, above or below, or partly above and partly below, low water mark and within [F2waters adjacent to [F3England and Wales] to a distance of six nautical miles measured from the baselines from which the breadth of the territorial sea is measured] (which shore and bed are in this Act referred to as “the sea shore”) and, if desirable, for the constitution of a board or body corporate for the purposes of the order.

[F4(1A)Subsection (1) above has effect in relation to Scotland, with the modification that for “waters adjacent to England and Wales to” there is substituted “that part of the Scottish zone within”.]

(2)An application for an order under this section shall be made in such form and manner as may be prescribed by regulations made by the appropriate Minister; and the provisions of Schedule 1 to this Act shall have effect in relation to the making of orders under this section.

(3)An order under this section may confer on such persons as may be specified in the order—

(a)a right of several fishery with respect to the whole of the area of the fishery to which the order relates, or

(b)a right of regulating a fishery with respect to the whole of that area, or

(c)a right of several fishery with respect to such part of that area as may be specified by or under the order and a right of regulating a fishery with respect to the remainder,

but shall not confer either right for a longer period at one time than sixty years.

F5(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)No order under this section shall take away or abridge any right of several fishery or any right on, to or over any portion of the sea shore, being a right enjoyed by any person under any local or special Act of Parliament or any Royal charter, letters patent, prescription, or immemorial usage, except with the consent of that person.

(6)[F6Any order made under this section may be varied or revoked by a subsequent order made under this section.

( 7 )Subject to subsection (8) below, subsections (1) to (5) above shall apply in relation to any such subsequent order and to an application for such an order as they apply in relation to an original order made under this section and to an application for such an order.

( 8 )Subsection (7) above does not apply in the case of any order made by virtue of subsection (10) below.

( 9 )Subsection (10) below applies in any case where it appears to the appropriate Minister that—

(a)permission has been granted for the carrying out of any development in, on or over any portion of the sea shore to which an order made under this section relates (the “affected area”), and

(b)as a result of the development, it will be impossible or impracticable to exercise any right of several fishery or of regulating a fishery conferred by the order in the affected area.

( 10 )In any such case, the appropriate Minister may—

(a)vary the order so that the area to which the order relates no longer includes the affected area, or

(b)if the affected area comprises the whole or the greater part of the area to which the order relates, revoke the order.

( 11 )The provision that may be made by an order made by virtue of subsection (10) above includes—

(a)provision requiring the owners of the affected area to pay compensation to any persons who, at the time of the making of the order, are entitled to a right of several fishery in any part of the affected area by virtue of an order under this section;

(b)provision for the amount of any such compensation to be specified in, or determined in accordance with provision made by, the order (including provision for or in connection with the appointment of a person to make any such determination).

( 12 )Before making an order by virtue of subsection (10) above, the appropriate Minister must consult—

(a)any persons who are entitled to a right of several fishery or a right of regulating a fishery in any part of the affected area by virtue of an order under this section, and

(b)the owners or reputed owners, lessees or reputed lessees and occupiers, if any, of the affected area.

( 13 )The appropriate Minister may require the owners of the affected area to provide him with such information relating to the development as he may reasonably require for the purpose of deciding whether to make an order by virtue of subsection (10) above.

( 14 ) In this section “ development ” has the same meaning as in the Town and Country Planning Act 1990. ]

[F7(14A)Subsection (14) above has effect in relation to Scotland as if the reference to the Town and Country Planning Act 1990 were a reference to section 26 of the Town and Country Planning (Scotland) Act 1997 (c.8).]

Textual Amendments

F1 Words in s. 1(1) substituted (12.1.2010 for E.W. and 16.9.2013 for S.) by Marine and Coastal Access Act 2009 (c. 23) , ss. 202(2) , 324(3) ; S.I. 2009/3345 , art. 2 , Sch. para. 9; Aquaculture and Fisheries (Scotland) Act 2013 (asp 7), ss. 55(1), 66(2) (with s. 65); S.S.I. 2013/249, art. 2

F3 Words in s. 1(1) substituted (1.7.1999) by S.I. 1999/1820 , art. 4 , Sch. 2 Pt. I para. 42(2)(a) ; S.I. 1998/3178 , art. 3

F4 S. 1(1A) inserted (1.7.1999) by S.I. 1999/1820 , art. 4 , Sch. 2 Pt. I para. 42(2)(b) ; S.I. 1998/3178 , art. 3

F5 S. 1(4) repealed (E.W.) (12.1.2010) by Marine and Coastal Access Act 2009 (c. 23) , ss. 202(3) , 324(3) , Sch. 22 Pts. 5(A) ; S.I. 2009/3345 , art. 2 , Sch. para. 9 Sch. para. 27(b) and s. 1(4) repealed (S.) (24.2.2011) by Marine (Scotland) Act (asp 5), ss. 160(1), 168(1) (with s. 162); S.S.I. 2011/58, art. 2(a)

F6 S. 1(6) substituted for s. 1(6)-(14) (E.W.) (12.1.2010) by Marine and Coastal Access Act 2009 (c. 23) , ss. 203 , 324(3) ; S.I. 2009/3345 , art. 2 , Sch. para. 9 and said amendment extended to S. (24.2.2011) by Marine (Scotland) Act 2010 (asp 5), ss. 160(2), 168(1) (with s. 162); S.S.I. 2011/58, art. 2(a)

F7S. 1(14A) inserted (24.2.2011) by Marine (Scotland) Act 2010 (asp 5), ss. 161(2), 168(1) (with s. 162); S.S.I. 2011/58, art. 2(a) (with art. 4)

Modifications etc. (not altering text)

C2 S. 1(1) extended by Fisheries Act 1981 (c. 29, SIF 52:1) , s. 34 ( a )

2 Effect of grant of right of several fishery. E+W+S

(1)Where an order under section 1 of this Act confers a right of several fishery, then, subject to any restrictions and exceptions contained in the order and to section 12 of this Act, the grantees shall have within the limits of the fishery, or of that part of the fishery within which the right is exercisable, the exclusive right of depositing propagating, dredging, fishing for and taking shellfish of any description to which the order applies, and in the exercise of that right may within those limits—

(a)make and maintain beds for such shellfish;

(b)at any season collect such shellfish and remove them from place to place and deposit them as and where the grantees think fit;

(c)do all other things which the grantees think proper for obtaining, storing and disposing of the produce of their fishery.

(2)In this section “the grantees” means the persons for the time being entitled to the right of several fishery conferred by the order under the said section 1.

Modifications etc. (not altering text)

3 Effect of grant of right of regulating a fishery.E+W+S

(1)Where an order under section 1 of this Act confers on the grantees a right of regulating a fishery for any specified description of shellfish and imposes restrictions on, or makes regulations respecting, the dredging, fishing for and taking of any specified description of shellfish within the limits of the regulated fishery, or of that part of the fishery within which the right is exercisable, or imposes tolls or royalties upon persons dredging, fishing for and taking any specified description of shellfish within the limits of that fishery or part, then, subject to any restrictions and exceptions contained in the order and to section 12 of this Act, the grantees shall have power to do all or any of the following things, namely—

(a)to carry into effect and enforce any such restrictions and regulations;

(b)to levy any such tolls or royalties;

(c)to provide for depositing and propagating shellfish of any description to which the order applies within those limits and for [F8 regulating ] the regulated fishery or regulated part, as the case may be.

(2)Subject to the provisions of section 4 of this Act, all such restrictions, regulations, tolls and royalties as aforesaid shall be imposed on and apply to all persons equally, and shall be for the benefit of the regulated fishery or part only, and [F9 , subject to subsection (2A) of this section, ]any such tolls and royalties shall be applied [F10 for purposes relating to the regulation of ] that fishery or part.

[F11( 2A )An order under section 1 of this Act which—

(a)confers on the grantees a right of regulating a fishery, and

(b)imposes tolls or royalties upon persons dredging, fishing for and taking shellfish within the limits of the fishery, or of that part of the fishery within which the right is exercisable,

may provide that the grantees may, for the purposes of recouping any costs incurred by the grantees in connection with applying for the order, retain such portion of those tolls and royalties as may be specified in the order.]

(3)Any person who dredges, fishes for or takes shellfish of any description to which any such order applies in contravention of any such restriction or regulation, or without paying any such toll or royalty, as aforesaid shall be guilty of an offence and liable on summary conviction to a fine not exceeding [F12 £50,000 ] and to forfeit all such shellfish so taken or, if they have been sold, a sum equal to their value; and any shellfish or sum so forfeited shall be recoverable in like manner as a fine.

(4)The court by which any such forfeiture is imposed may direct the shellfish or sum forfeited to be delivered or paid to the grantees to be applied by them [F13 for purposes relating to the regulation of ] the regulated fishery or part.

[F14(4A)Subsection (4B) applies where an order under section 1 of this Act—

(a)confers a right of regulating a fishery for any specified description of shellfish, and

(b)imposes restrictions on, or makes regulations respecting, the dredging, fishing for and taking of any specified description of shellfish within the limits of the regulated fishery or any part of it.

(4B)A person commits an offence if—

(a)the person is found within the limits of, or in the immediate vicinity of, the regulated fishery,

(b)the person is found there at, or about, a time at which the restrictions imposed or regulations made by the order apply,

(c)when so found, the person is in possession of such equipment, vehicle, apparatus or other gear or paraphernalia (including clothing) as may be used for the purpose of dredging, fishing for and taking shellfish in contravention of the restrictions or regulations, and

(d)it is reasonable to infer from those facts (either by themselves or taken together with other circumstances) that the person intends to dredge, fish for and take shellfish in contravention of the restrictions or regulations.

(4C)A person who commits an offence under subsection (4B) is liable on summary conviction to a fine not exceeding £50,000.]

[F15( 5 )Where any sea fishing boat is used in the commission of an offence under subsection (3) [F16or (4B)]of this section, the master, the owner and the charterer (if any) shall each be guilty of an offence and liable on summary conviction to a fine not exceeding £50,000.]

[F17( 6 )[F18Subsection (1) of this section[F18This section]] applies where an order under section 1 of this Act—

(a)confers on the grantees a right of regulating a fishery, and

(b)by virtue of section 15(3) of the Sea Fisheries Act 1968, enables the grantees to impose restrictions on, or make regulations respecting, the dredging, fishing for and taking of shellfish within the limits of the regulated fishery or part,

as it applies where an order under section 1 of this Act confers such a right and imposes such restrictions or makes such regulations.

( 7 )Accordingly, any reference in this section to restrictions or regulations is to be read as including a reference to any restrictions imposed by, or any regulations made by, the grantees.]

Textual Amendments

F8Word in s. 3(1)(c) substituted (E.W.) (12.1.2010) by Marine and Coastal Access Act 2009 (c. 23), ss. 204(2), 324(3); S.I. 2009/3345, art. 2, Sch. para. 9 and said amendment extended to S. (24.2.2011) by Marine (Scotland) Act 2010 (asp 5), ss. 161(1), 168(1) (with s. 162); S.S.I. 2011/58, art. 2(a) (with art. 4)

F9Words in s. 3(2) inserted (E.W.) (12.1.2010) by Marine and Coastal Access Act 2009 (c. 23), ss. 204(3)(a), 324(3); S.I. 2009/3345, art. 2, Sch. para. 9 and said amendment extended to S. (24.2.2011) by Marine (Scotland) Act 2010 asp 5, ss. 161(1), 168(1) (with s. 162); S.S.I. 2011/58, art 2(a) (with art. 4)

F10Words in s. 3(2) substituted (E.W.) (12.1.2010) by Marine and Coastal Access Act 2009 (c. 23), ss. 204(3)(b), 324(3); S.I. 2009/3345, art. 2, Sch. para. 9 and said amendment extended to S. (24.2.2011) by Marine (Scotland) Act 2010 asp 5 ss. 161(1), 168(1) (with s. 162); S.S.I. 2011/58, art. 2(a) (with art. 4)

F11S. 3(2A) inserted (E.W.) (12.11.2009 for specified purposes) by Marine and Coastal Access Act 2009 (c. 23), ss. 204(4), 324(1)(c), 324(1)(d) and said amendment extended to S. (24.2.2011) by Marine (Scotland) Act 2010 (asp 5), ss. 161(1), 168(1) (with s. 162); S.S.I. 2011/58, art. 2(a) (with art. 4)

F12Word in s. 3(3) substituted (S.) (1.8.2007) by virtue of Aquaculture and Fisheries (Scotland) Act 2007 (asp 12), ss. 32(1), 45(2) (with s. 39); S.S.I. 2007/333, art. 2(1) (with art. 3); and said word also substituted (E.W.) (12.1.2010) by virtue of Marine and Coastal Access Act 2009 (c. 23), ss. 205(2), 324(3); S.I. 2009/3345, art. 2, Sch. para. 9 (with art. 3(1))

F13Words in s. 3(4) substituted (E.W.) (12.1.2010) by Marine and Coastal Access Act 2009 (c. 23), ss. 204(5), 324(3); S.I. 2009/3345, art. 2, Sch. para. 9 and said amendment extended to S. (24.2.2011) by Marine (Scotland) Act 2010 (asp 5), ss. 161(1), 168(1) (with art. 162); S.S.I. 2011/58, art. 2(a) (with art. 4)

F15S. 3(5) inserted (E.W.) (12.1.2010) by Marine and Coastal Access Act 2009 (c. 23), ss. 206(1), 324(3); S.I. 2009/3345, art. 2, Sch. para. 9 (with art. 3(2)) and said amendment extended to S. (24.2.2011) by Marine (Scotland) Act 2010 (asp 5), ss. 161(1), 168(1) (with s. 162); S.S.I. 2011/58, art. 2(a) (with art. 4)

F17S. 3(6)(7) inserted (E.W.) (12.11.2009 for specified purposes) by Marine and Coastal Access Act 2009 (c. 23), ss. 207, 324(1)(c), 324(1)(d) and said amendment extended to S. (24.2.2011) by Marine (Scotland) Act 2010 asp 5, ss. 161(1), 168(1) (with s. 162); S.S.I. 2011/58, art. 2(a) (with art. 4)

[F193AContravention of regulated fishery orders: presumptionS

(1)Subsection (2) applies in proceedings against a person (“the accused”) for an offence under section 3(3) of this Act involving dredging, fishing for and taking shellfish in contravention of restrictions imposed or regulations made by—

(a)an order under section 1 of this Act, or

(b)the grantee of such an order.

(2)It is to be presumed that the accused was, or had been, dredging, fishing for and taking shellfish in contravention of the restrictions or regulations if—

(a)it is proved that—

(i)the accused was found within the limits of, or in the immediate vicinity of, the regulated fishery to which the order relates,

(ii)the accused was found there at, or about, a time at which the restrictions or regulations apply, and

(iii)when so found, the accused was in possession of any of the things mentioned in subsection (3), and

(b)it is reasonable to infer from those facts (either by themselves or taken together with other circumstances) that the accused was, or had been, dredging, fishing for and taking shellfish in contravention of the restrictions or regulations.

(3)The things are—

(a)such equipment, vehicle, apparatus or other gear or paraphernalia (including clothing) as may be used for the purpose of dredging, fishing for and taking shellfish in contravention of the order,

(b)shellfish the dredging, fishing for and taking of which is prohibited by the restrictions or regulations.

(4)Subsection (2) does not apply if evidence is adduced sufficient to raise an issue as to whether—

(a)the accused's presence within the limits of, or in the vicinity of, the regulated fishery to which the order relates was for the purpose of dredging, fishing for and taking shellfish in contravention of the restrictions or requirements, or

(b)where the accused was found in possession—

(i)of any of the things mentioned in paragraph (a) of subsection (3), the possession of the thing was for that purpose,

(ii)of shellfish mentioned in paragraph (b) of that subsection, the shellfish were caught or taken in contravention of the restrictions or requirements.]

Textual Amendments

4 Licensing powers in case of regulated fishery.E+W+S

(1)This section applies to an order made under section 1 of this Act, being an order which confers a right of regulating a fishery.

(2)The restrictions imposed by an order to which this section applies may include restrictions prohibiting all persons from dredging, fishing for or taking, within the limits of the fishery or of that part of the fishery within which the right is exercisable, shellfish of the description to which the order applies except under the authority of a licence issued in that behalf by the grantees.

(3)Any power to vary an order to which this section applies shall (without prejudice to the generality of that power) include power to vary the order so as to impose restrictions in accordance with subsection (2) of this section.

(4)Where an order to which this section applies (either as originally made or as varied) imposes any such restrictions, then, subject to the provisions of the order and of this section, licences may be issued under the order in such numbers and to such persons, and operative for such periods, and may authorise the dredging, fishing for or taking of shellfish at such times, in such manner and to such extent, as the grantees may determine.

(5)Where in pursuance of such an order the grantees propose to issue licences, they shall, unless they propose to issue licences to all such persons as may apply for them, notify the appropriate Minister of their intention; and the appropriate Minister may give directions to the grantees as to the exercise of their powers under subsection (4) of this section.

(6)If the grantees issue or withhold licences without complying with the requirements of subsection (5) of this section or of any directions given thereunder, then, for the purposes of section 5 of this Act (and without prejudice to the generality of that section) the grantees shall be taken not to be properly carrying into effect the restrictions imposed by the order; but no licence issued in contravention of any such requirements shall be invalid by reason only that it was so issued.

(7)Any licence issued under an order to which this section applies may with the consent of the appropriate Minister be cancelled by the grantees if the person to whom the licence is issued[F20 is convicted ] of an offence of contravening a restriction imposed by the orderF21...; but, except as provided by this subsection, a licence so issued shall not be cancelled before it is due to expire unless the person to whom it was issued dies or surrenders the licence.

(8)In this section any reference to the imposition of restrictions includes a reference to the making of regulations.

Textual Amendments

F20S. 4(7): word "is" substituted (S.) (1.8.2007) by virtue of Aquaculture and Fisheries (Scotland) Act 2007 (asp 12), ss. 32(2)(a), 45(2) (with s. 39); S.S.I. 2007/333, art. 2(1) (with art. 3); and words in s. 4(7) substituted (E.W.) (12.1.2010) by Marine and Coastal Access Act 2009 (c. 23), ss. 208(a), 324(3); S.I. 2009/3345, art. 2, Sch. para. 9

[F22 4ZA Register of licencesE+W+S

(1)This section applies where the grantees of an order to which section 4 of this Act applies issue one or more licences in pursuance of the order.

(2)The grantees shall establish and maintain a register containing the names and addresses of all persons who for the time being hold licences issued by the grantees.

(3)The register shall be available for inspection free of charge by any person at such place or places, and during such hours, as are determined by the grantees.

(4)The grantees shall make arrangements for the provision of a copy of an entry in the register to any person on request.

(5)The arrangements that may be made under subsection (4) of this section include arrangements for the payment of a reasonable fee by the person making the request.]

Textual Amendments

F22S. 4ZA inserted (E.W.) (12.1.2010) by Marine and Coastal Access Act 2009 (c. 23), ss. 209, 324(3); S.I. 2009/3345, art. 2, Sch. para. 9 and said amendment extended to S. (24.2.2011) by Marine (Scotland) Act 2010 (asp 5), ss. 161(1), 168(1) (with s. 162); S.S.I. 2011/58, art. 2(a) (with art. 4)

[F234APowers of sea-fishery officers in relation to fishing boats to enforce regulated fisheryE+W+S

(1)For the purpose of enforcing restrictions imposed by, or regulations made by, an order under section 1 conferring a right of regulating a fishery, a British sea-fishery officer may exercise the powers conferred by subsections (2) to (7) in relation to—

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

(b)any other fishing boat in the Scottish zone.

(2)The officer may go on board the boat, with or without persons assigned to assist in the duties of that officer, and may, for that purpose or for the purpose of disembarking from the boat, require the boat to stop, and anything else to be done which will facilitate the boarding of, or as the case may be, disembarking from, the boat.

(3)The officer may require the attendance of the master and any other person on board the boat and may make any examination and inquiry which appears to the officer to be necessary for the purpose of enforcing such restrictions or regulations.

(4)In particular under subsection (3) the officer may—

(a)search the boat for shellfish or fishing gear;

(b)examine any shellfish on the boat and the equipment (including the fishing gear) of the boat, and require persons on board the boat to do any thing which appears to the officer to be necessary for facilitating the examination;

(c)require any person on the boat to produce any relevant document in the person's custody or possession;

(d)for the purpose of ascertaining whether an offence under section 3(3) has been committed, search the boat for any relevant document and may require any person on board the boat to do anything which appears to the officer to be necessary for facilitating the search;

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

(f)require the master or any person for the time being in charge of the boat to render any relevant document on a computer system into visible and legible form and to produce it in a form in which it may be taken away; and

(g)where the boat is one in relation to which the officer has reason to suspect that an offence under section 3(3) has been committed, seize and detain any relevant document produced to the officer or found on board, for the purpose of enabling the document to be used as evidence in proceedings for the offence.

(5)But subsection (4)(g) does not permit any document required by law to be carried on a boat to be seized and detained except while the boat is detained in a port.

(6) In subsection (4), “ relevant document ” means a document relating to—

(a)the boat; or

(b)the catching, landing, transportation, transhipment, sale or disposal of shellfish.

(7)Where it appears to a British sea-fishery officer that an offence under section 3(3) has at any time been committed the officer—

(a)may take, or require the master of any 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)may detain, or require the master to detain, the boat in the port.

(8)Where a British sea-fishery officer detains or requires the detention of a boat under subsection (7)(b), the officer must serve notice in writing on the master stating that the boat is or, as the case may be, is required to, be detained until the time mentioned in subsection (9).

(9)That time is when the master is served with a notice in writing signed by a British sea-fishery officer stating that the previous notice ceases to have effect.

Textual Amendments

4BPowers of sea-fishery officers on land to enforce regulated fisheryE+W+S

(1)For the purpose of enforcing restrictions imposed by, or regulations made by, an order under section 1 conferring a right of regulating a fishery, a British sea-fishery officer may exercise the powers conferred by subsections (2) to (11) of this section in relation to—

(a)any premises (other than a dwelling-house) used for—

(i)carrying on any business in connection with the operation of fishing boats;

(ii)an activity connected with or ancillary to the operation of fishing boats; or

(iii)the treatment, storage or sale of shellfish;

(b)any vehicle which the officer has reasonable cause to believe is being used—

(i)to dredge, fish for or take shellfish; or

(ii)to transport shellfish.

(2)The officer may enter and inspect, at any reasonable time, the premises or vehicle (and, in the case of a vehicle, for that purpose require the vehicle to stop or require the operator to take the vehicle to a particular place).

(3)The officer may, in exercising the power conferred by subsection (2), take with the officer such other persons as appear to the officer to be necessary and any equipment or materials.

(4)The officer may examine any shellfish on the premises or vehicle and require persons on the premises or vehicle to do anything which appears to the officer to be necessary for facilitating the examination.

(5)The officer may on the premises or vehicle carry out such other inspections and tests as may reasonably be necessary.

(6)The officer may require any person not to remove or cause to be removed any shellfish from the premises or vehicle for such a period as may be reasonably necessary for the purposes of establishing whether an offence under section 3(3) has at any time been committed.

(7)The officer may require any person on the premises or vehicle to produce any relevant document in the person's custody or possession.

(8)The officer may, for the purpose of establishing whether an offence under section 3(3) has been committed, search the premises or vehicle for any relevant document, and may require any person on the premises or vehicle to do anything which appears to the officer to be necessary for facilitating the search.

(9)The officer may inspect and take copies of any relevant document produced or found on the premises or vehicle.

(10)The officer may require any person to render any relevant document on a computer system into a visible and legible form and to produce it in a form in which it may be taken away.

(11)If the officer has reasonable grounds to suspect that an offence under section 3(3) has been committed, the officer may seize and detain any relevant document produced or found on the premises or vehicle, for the purpose of enabling the document to be used as evidence in proceedings for the offence.

(12)A sheriff may, if satisfied by evidence on oath as to the matters mentioned in subsection (13), grant a warrant authorising a British sea-fishery officer to enter premises (if necessary using reasonable force), accompanied by such persons as appear to the officer to be necessary.

(13)Those matters are—

(a)that there are reasonable grounds to believe that anything which a British sea-fishery officer has power under this section to examine or inspect is on the premises and that the examination or inspection is likely to disclose evidence of the commission of an offence under section 3(3); and

(b)that any of the following is the case—

(i)admission to the premises has been or is likely to be refused and that notice of intention to apply for a warrant under subsection (12) has been given to the occupier;

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

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

(14)A warrant under subsection (12) is valid for the period of one month beginning with the date on which it is granted or for such shorter period as the sheriff may specify.

(15)In this section—

  • “ premises ” includes land; and

  • “ relevant document ” means a document relating to the catching, landing, transportation, transhipment, sale or disposal of shellfish.

Textual Amendments

4CPowers of British sea-fishery officers to seize fish and fishing gearE+W+S

(1)A 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 shellfish and any net or other fishing gear to which subsection (2) applies.

(2)This subsection applies to—

(a)any shellfish in respect of which the officer has reasonable grounds to suspect that an offence under section 3(3) has been committed;

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

(3)In this section—

(a) “ Scotland ” has the meaning given by the Scotland Act 1998 (c. 46); and

(b)references to shellfish include any receptacle which contains shellfish.

Textual Amendments

[F244CAPower to enter landS

(1)For the purposes of exercising the powers conferred by sections 4A to 4C, and of enforcing the restrictions imposed by, or regulations made by, an order under section 1 conferring a right of regulating a fishery, a British sea-fishery officer may at any time enter land (including the foreshore) other than a dwelling house, and for that purpose may—

(a)open lockfast places,

(b)remove any objects preventing the officer from gaining access to the land,

(c)require any person who has placed an object in such a position as to prevent the officer from gaining access to the land to remove the object,

(d)require the owner or occupier of the land to allow the officer access to the land.

(2)A British sea-fishery officer may—

(a)exercise the power of entry under subsection (1) on foot or in a vehicle,

(b)when exercising that power, take with the officer—

(i)such persons as appear to the officer to be necessary,

(ii)any equipment or material.

(3)The power of entry under subsection (1)—

(a)may not be exercised in relation to land in respect of which section 4B confers a power of entry, and

(b)is without prejudice to the power of entry conferred by that section.

(4)A British sea-fishery officer who proposes to exercise the power of entry conferred by subsection (1) must, if so required, produce evidence of the officer's identity.]

Textual Amendments

4DSections 4A to [F254CA]: supplementaryE+W+S

(1)A British sea-fishery officer, or a person assisting such an officer by virtue of section 4A(2) or [F26, 4B(3) or (12) or 4CA(2)(b)], is not liable in any civil or criminal proceedings for anything done in the purported exercise of a power conferred by section 4A, 4B [F27, 4C or 4CA ] if the court is satisfied—

(a)that the act was done in good faith;

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

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

(2)A person who—

(a)fails without reasonable excuse to comply with any requirement imposed on the person by a British sea-fishery officer under a power conferred by section 4A [F28, 4B or 4CA ];

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

(c)obstructs such an officer in the exercise of any of those powers or the powers conferred by section 4C,

shall be guilty of an offence.

[F29(2A)A constable may arrest without warrant any person who the constable reasonably believes is committing or has committed an offence under subsection (2) relating to—

(a)a failure to comply with a requirement imposed under a power conferred by section 4CA,

(b)obstructing a British sea-fishery officer in the exercise of such a power.

(2B)Subsection (2A) above is without prejudice to any power of arrest conferred by law apart from that subsection.]

(3)A person who commits an offence under subsection (2) is liable—

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

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

Textual Amendments

F28Words in s. 4D(2)(a) substituted (S.) (16.9.2013) by Aquaculture and Fisheries (Scotland) Act 2013 (asp 7), ss. 57(3)(b), 66(2) (with s. 65); S.S.I. 2013/249, art. 2

5 Cesser of right conferred by order under s. 1. E+W+S

(1)If, in the case of any right of several fishery or of regulating a fishery conferred by an order made under section 1 of this Act, the appropriate Minister is not satisfied, either as respects the whole of the area within which that right is exercisable or as respects any part of that area, that the grantees are properly cultivating the ground for shellfish of any description to which the order applies within the limits of that area or part or properly carrying into effect and enforcing any restrictions and regulations contained in the order and levying any tolls or royalties imposed thereby, he may make a certificate to that effect and thereupon that right shall be absolutely determined as respects that area or, as the case may be, that part thereof, and the provisions of this Act shall cease to operate in relation to that area or, as the case may be, that part thereof as, or, as the case may be, as part of, a several or regulated fishery.

(2)For the purpose of subsection (1) of this section, the appropriate Minister may from time to time, with respect to any such fishery, make such inquiries and examination by an inspector or otherwise, and require from the grantees such information, as that Minister thinks necessary or proper, and the grantees shall afford all facilities for such inquiries and examination, and give such information, accordingly.

(3)For the purpose of carrying out any inquiry or examination with respect to a fishery in pursuance of subsection (2) of this section, any inspector or other person appointed by the appropriate Minister under that subsection may take evidence, and by summons under his hand require the attendance of any person and examine him and any person who attends before him, on oath or otherwise, as he thinks expedient, and may administer an oath or take any affidavit or declaration for the purpose of the inquiry or examination.

(4)For the purpose of carrying out any such inquiry or examination, a person authorised in that behalf by the appropriate Minister shall, subject to subsection (5) of this section, have the right, at any reasonable time, to enter any land within the limits of the fishery, and to obtain and take away samples (which shall be marked, labelled or otherwise made capable of identification) of any shellfish found within those limits; and, notwithstanding anything contained in this Act, when the purpose for which any such sample was taken has been satisfied the person by whom the sample was taken may dispose of it as he may determine.

(5)A right of entry under subsection (4) of this section shall not be exercisable in respect of any land unless not less than twenty-four hours’ notice of the intended entry has been given to the occupier of the land, and also to the grantees if they are not the occupiers of the land; and the person exercising the right shall, if so requested, produce written evidence of his authority before entering.

(6)Any duty imposed on any person by subsection (2) of this section to afford facilities for any inquiry or examination in respect of a fishery shall include a duty to afford facilities for the exercise of any right exercisable in respect of the fishery in accordance with subsections (4) and (5) of this section.

(7)Any person who obstructs an inspector or other person in the exercise of any power or right conferred by this section, or who refuses or without reasonable excuse fails to provide any information reasonably required by an inspector or other person in the exercise of any such power or right, shall be guilty of an offence and liable on summary conviction to a fine not exceeding [F30level 3 on the standard scale].

(8)In this section “the grantees”, in relation to a right of several fishery, means the persons for the time being entitled to that right.

(9)In the application of this section to Scotland, subsection (3) shall have effect as if for the words “summons under his hand” there were substituted the words “an order signed by him”.

Textual Amendments

F30Words substituted by virtue of (E.W.) Criminal Justice Act 1982 (c. 48, SIF 39:1), ss. 38, 46 and (S.) Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:1), ss. 289F, 289G and by 1994 c. 33, s. 157(1)(9), Sch. 8 Pt. I; S.I. 1995/127, art. 2(1), Sch. 1 it is provided (3.2.1995) that s. 5(7) shall have effect as if the maximum fine that may be imposed on summary conviction for the offence mentioned therein were a fine not exceeding level 5 on the standard scale instead of a fine not exceeding level 3

Modifications etc. (not altering text)

6 Report to Parliament.E+W+S

The appropriate Minister shall after the end of every year prepare a report respecting the applications to, and proceedings of, that Minister under the foregoing provisions of this Act during that year and shall lay a copy of it before each House of Parliament. F31[or, in the case of a report in relation to Scotland, before the Scottish Parliament]

Textual Amendments

F31Words in s. 6 inserted (1.7.1999) by S.I. 1999/1820, art. 4, Sch. 2 Pt. I para. 42(3); S.I. 1998/3178, art. 3

7 Protection of fisheries. E+W+S

(1)The provisions of this section shall have effect where—

(a)an order under section 1 of this Act grants a right of several fishery, or

(b)a [F32 private shellfish bed ] is owned by any person independently of this Act and is sufficiently marked out or sufficiently known as such.

(2)All shellfish of a description to which the order applies in or on a bed for such shellfish within the area of the fishery with respect to which the right of several fishery is conferred, or, as the case may be, all [F33 relevant shellfish ] in or on the [F34 private shellfish bed ], shall be the absolute property of the grantees or, as the case may be, of the owner of the bed and in all courts and for all purposes shall be deemed to be in the actual possession of the grantees or, as the case may be, owner.

(3)All such shellfish removed by any person from a bed for such shellfish within the area of the fishery with respect to which the right of several fishery is conferred, or, as the case may be, all [F35 relevant shellfish ] removed by any person from the [F36 private shellfish bed ], shall, unless F37. . . or disposed of by or under the authority of the grantees or, as the case may be, of the owner of the bed, be the absolute property of the grantees or, as the case may be, of the owner, and in all courts and for all purposes the absolute right to the possession thereof shall be deemed to be in the grantees or, as the case may be, owner.

(4)Subject to subsection (5) of this section, if within the limits of the area of the fishery with respect to which the right of several fishery is conferred or in any part of that area described for the purposes of this subsection in the order, or within the limits of any such [F38 private shellfish bed ], any person other than the grantees or an agent or employee of theirs or, as the case may be, the owner or an agent or employee of his knowingly does any of the following things, namely—

(a)uses any implement of fishing except—

(i)a line and hook; or

(ii)a net adapted solely for catching floating fish and so used as not to disturb or injure in any manner shellfish of the description in question or any bed therefor or the fishery therefor; [F39or [F40or

(iii)in the case of several fishery, an implement of a type specified by or under the order and so used as not to disturb or injure in any manner shellfish of the description in question or any bed for such shellfish or the fishery for such shellfish;]

(iii)in the case of several fishery, an implement of a type specified in the order and so used as not to disturb or injure in any manner shellfish of the description in question.]

(b)dredges for any ballast or other substance except under a lawful authority for improving the navigation;

(c)deposits any ballast, rubbish or other substance;

(d)places any implement, apparatus or thing prejudicial or likely to be prejudicial to any such shellfish, bed or fishery except for a lawful purpose of navigation or anchorage;

(e)disturbs or injures in any manner, except for a lawful purpose of navigation or anchorage, any such shellfish, bed or fishery;

he shall be guilty of an offence and liable on summary conviction to a fine not exceeding, in the case of a first offence, [F41 £50,000 ], or, in the case of a second offence, [F41 £50,000 ], or, in the case of a third or subsequent offence, [F41 £50,000 ], and shall also be liable to make full compensation to the grantees or, as the case may be, owner for all damage sustained by them or him by reason of the unlawful act; and such compensation in default of payment may be recovered from him by the grantees or owner as the case may be by proceedings in any court of competent jurisdiction whether he has been prosecuted for or convicted of the offence in question or not.

[F42( 4A )The power to specify a type of implement for the purposes of subsection (4)(a)(iii) of this section includes power to specify—

(a)periods during which implements of that type may or may not be used;

(b)parts of the area of the fishery with respect to which the right of several fishery is conferred in which implements of that type may or may not be used.

The exception in subsection (4)(a)(iii) of this section does not apply in a case of a person who uses an implement otherwise than in accordance with provision made by virtue of this subsection.]

(5)Nothing in subsection (4) of this section shall make it unlawful for any person to do any of the things therein mentioned—

(a)in the case of a right of several fishery granted by an order under section 1 of this Act, if at the time of his doing that thing the limits of the area of the fishery within which that right is exercisable or of the part of that area described for the purposes of the said subsection (4) in the order are not sufficiently marked out in manner prescribed by or under the order or if notice of those limits has not been given to that person in manner so prescribed;

(b)in the case of a [F43 private shellfish bed ] owned by any person independently of this Act, if the bed is not sufficiently marked out and known as such.

(6)

[F44In this section—

  • “ the grantees ” means the persons for the time being entitled to the right of several fishery conferred by the order under section 1 of this Act;

  • “ relevant shellfish ”, in relation to a private shellfish bed, means the shellfish in respect of which the owner of the bed has private rights independently of this Act. ]

Textual Amendments

F33Words in s. 7(2) substituted (E.W.) (12.1.2010) by Marine and Coastal Access Act 2009 (c. 23), ss. 210(3)(a), 324(3); S.I. 2009/3345, art. 2, Sch. para. 9 and said amendment extended to S. (24.2.2011) by Marine (Scotland) Act 2010 (asp 5), ss. 161(1), 168(1) (with s. 162); S.S.I. 2011/58, art. 2(a) (with art. 4)

F34Words in s. 7(2) substituted (E.W.) (12.1.2010) by Marine and Coastal Access Act 2009 (c. 23), ss. 210(3)(b), 324(3); S.I. 2009/3345, art. 2, Sch. para. 9 and said amendment extended to S. (24.2.2011) by Marine (Scotland) Act 2010 (asp 5), ss. 161(1), 168(1) (with s. 162); S.S.I. 2011/58, art. 2(a) (with art. 4)

F35Words in s. 7(3) substituted (E.W.) (12.1.2010) by Marine and Coastal Access Act 2009 (c. 23), ss. 210(3)(a), 324(3); S.I. 2009/3345, art. 2, Sch. para. 9 and said amendment extended to S. (24.2.2011) by Marine (Scotland) Act 2010 (asp 5), ss. 161(1), 168(1) (with s. 162); S.S.I. 2011/58, art. 2(a) (with art. 4)

F36Words in s. 7(3) substituted (E.W.) (12.1.2010) by Marine and Coastal Access Act 2009 (c. 23), ss. 210(3)(b), 324(3); S.I. 2009/3345, art. 2, Sch. para. 9 and said amendment extended to S. (24.2.2011) by Marine (Scotland) Act 2010 (asp 5), ss. 161(1), 168(1) (with s. 162); S.S.I. 2011/58, art. 2(a) (with art. 4)

F37Words in s. 7(3) omitted (3.1.1995) by virtue of 1994 c. 32, ss. 2(2), 3(3) (with s. 3(2))

F38Words in s. 7(4) substituted (E.W.) (12.1.2010) by Marine and Coastal Access Act 2009 (c. 23), ss. 210(4), 324(3); S.I. 2009/3345, art. 2, Sch. para. 9 and said amendment extended to S. (24.2.2011) by Marine (Scotland) Act 2010 (asp 5), ss. 161(1), 168(1) (with s. 162); S.S.I. 2011/58, art. 2(a) (with art. 4)

F39S. 7(4)(a)(iii) and preceding word inserted (S.) (2.1.2001) by 2000 asp 12, s. 1

F40S. 7(4)(a)(iii) and preceding word inserted "at the end of paragraph (a)(ii)" (E.W.) (12.1.2010) by virtue of Marine and Coastal Access Act 2009 (c. 23), ss. 211(2), 324(3); S.I. 2009/3345, art. 2, Sch. para. 9

F41Word in s. 7(4) substituted (E.W.) (12.1.2010) by virtue of Marine and Coastal Access Act 2009 (c. 23), ss. 205(3), 324(3); S.I. 2009/3345, art. 2, Sch. para. 9 (with art. 3(1)) and said word substituted (24.2.2011) by virtue of Marine (Scotland) Act 2010 (asp 5), ss. 161(3), 168(1) (with s. 162); S.S.I. 2011/58, art. 2(a) (with art. 4)

F42S. 7(4A) inserted (E.W.) (12.1.2010) by Marine and Coastal Access Act 2009 (c. 23), ss. 211(3), 324(3); S.I. 2009/3345, art. 2, Sch. para. 9 and said amendment extended to S. (24.2.2011) by Marine (Scotland) Act 2010 (asp 5), ss. 161(1), 168(1) (with s. 162); S.S.I. 2011/58, art. 2(a) (with art. 4)

F43Words in s. 7(5)(b) substituted (E.W.) (12.1.2010) by Marine and Coastal Access Act 2009 (c. 23), ss. 210(4), 324(3); S.I. 2009/3345, art. 2, Sch. para. 9and said amendment extended to S. (24.2.2011) by Marine (Scotland) Act 2010 (asp 5), ss. 161(1), 168(1) (with s. 162); S.S.I. 2011/58, art. 2(a) (with art. 4)

F44S. 7(6) substituted (E.W.) (12.1.2010) by Marine and Coastal Access Act 2009 (c. 23), ss. 210(5), 324(3); S.I. 2009/3345, art. 2, Sch. para. 9 and said amendment extended to S. (24.2.2011) by Marine (Scotland) Act 2010 (asp 5), ss. 161(1), 168(1) (with s. 162); S.S.I. 2011/58, art. 2(a) (with art. 4)

Modifications etc. (not altering text)

8 Proof of certain matters.E+W+S

Whenever it is necessary in any legal proceedings to prove that the requirements of an order under section 1 of this Act or of any other Act as to—

(a)the buoying or other marking of the limits of any fishery for shellfish of any description to which the order applies or, as the case may be, of any fishery for oysters or mussels to which that other Act applies, or

(b)the publication, posting or distribution of notices of those limits,

have been complied with, or that notice of the provisions of the order or Act relating to the fishery has been duly published, a certificate, purporting to be under the hand of one of the secretaries, under secretaries or assistant secretaries of the appropriate Minister’s department [F45or, as regards Scotland, signed by a member of the staff of the Scottish Administration], certifying that that Minister is satisfied that those requirements have been complied with or that the said notice was duly published shall be received as evidence of compliance with those requirements or publication of that notice.

Textual Amendments

F45Words in s. 8 inserted (1.7.1999) by S.I. 1999/1820, art. 4, Sch. 2 Pt. I para. 42(4); S.I. 1998/3178, art. 3

9 Grants and loans for restoration of fisheries. E+W+S

(1)The appropriate Minister may, with the approval of the Treasury, make grants or loans to any person in respect of any expenses incurred or to be incurred by him in cleansing and reinstating (including restocking) any shellfish beds to which this subsection applies which have been affected by any disease or pest.

[F46(1A)Subsection (1) above has effect in relation to Scotland, with the modification that for “waters adjacent to England and Wales to” there is substituted “that part of the Scottish zone within”.]

(2)Subsection (1) of this section applies—

(a)to any shellfish bed within the limits of a fishery in respect of which an order under section 1 of this Act is for the time being in force, and

(b)to any other shellfish bed used for the propagation or cultivation of oysters, mussels or cockles, being a shellfish bed in respect of which a person has an exclusive right to take oysters, mussels or cockles.

Textual Amendments

Modifications etc. (not altering text)

10 Fishery to be within county, etc. for purposes of jurisdiction.E+W+S

[F47(1)] The portion of the sea shore to which an order under section 1 of this Act relates shall for all purposes of jurisdiction be deemed to be within the body of the adjoining county, borough or burgh (so far as it is not by law within it) or to be within the body of each of them, if more than one.

[F48(2)In the application of this section in relation to Wales, the reference to a county in subsection (1) of this section includes a reference to a preserved county (as defined by section 64 of the Local Government (Wales) Act 1994).]

Textual Amendments

11 Service of certain documents.E+W+S

Without prejudice to any provision made by or under any other Act prescribing the manner in which service of any document may be effected, service of any summons or other document in any proceedings under section 3(3) or 7(4) of, or paragraph 4(5) of Schedule 1 to, this Act may be effected by leaving the document for the person to be served on board any sea fishing boat to which he belongs with the person being or appearing to be in charge of the boat.