The Sea Fishing (Enforcement of Community Conservation Measures) (Wales) Order 2000

Title, commencement and application

1.—(1) This Order may be cited as the Sea Fishing (Enforcement of Community Conservation Measures) (Wales) Order 2000 and shall come into force on 11 September 2000.

(2) This Order applies to Wales and to the sea adjacent to Wales.

Interpretation

2.—(1) In this Order –

• “fish” (“pysgod”) includes crustacea, molluscs and parts of fish;

• “fisheries products” (“cynhyrchion pysgodfeydd”) includes fish;

• “fishing boat” (“cwch pysgota”) includes a receiving vessel and a third country vessel, in each case within the meaning of Regulation 2847/93;

• “local fisheries committee” (“pwyllgor pysgodfeydd lleol”) means a local fisheries committee constituted by an order made, or having effect as if made, under section 1 of the Sea Fisheries Regulation Act 1966(1);

• “Regulation 2847/93” (“Rheoliad 2847/93”) means Council Regulation (EEC) No. 2847/93 establishing a control system applicable to the common fisheries policy(2);

• “Regulation 894/97” (“Rheoliad 894/97”) means Council Regulation (EC) No. 894/97 laying down certain technical measures for the conservation of fishery resources(3);

• “Regulation 850/98” (“Rheoliad 850/98”) means Council Regulation (EC) No. 850/98 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms(4) as corrected by a Corrigendum to its Annex XII(5) and amended by Council Regulation (EC) No. 308/1999(6), Council Regulation (EC) No. 1459/99(7) and Council Regulation (EC) No. 2723/1999(8);

• “Regulation 2742/99” (“Rheoliad 2742/99”) means Council Regulation (EC) No. 2742/99(9) fixing for 2000 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where limitations in catch are required and amending Regulation (EC) No. 66/98, as corrected by a Corrigendum(10);

• “relevant offence” (“tramgwydd perthnasol” ) means an offence under:

  (a)

  article 3 of this Order, or

  (b)

  any provision in any other order extending to any part of the United Kingdom made for the purposes of implementing a specified Community measure, being a provision in respect of which, by virtue of section 30(2A) of the Fisheries Act 1981(11), proceedings may be taken in any place in the United Kingdom;

• “the sea adjacent to Wales” (“y môr cyfagos at Gymru”) means the sea adjacent to Wales out as far as the seaward boundary of the territorial sea and shall be interpreted in accordance with article 6 and Schedule 3 of the National Assembly for Wales (Transfer of Functions) Order 1999(12); and

• “specified Community measure” (“mesur Cymunedol penodedig”) means a provision which is specified in column 1 of the Schedule, read, in each case, with any qualifying words relating to that provision in that column.

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

(i) any map, plan, graph or drawing;

(ii) any photograph;

(iii) any data, howsoever reproduced, communicated via a satellite-based vessel monitoring system established under Article 3.1 of Regulation 2847/93;

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

(v) any film (including microfilm), negative, tape, disk or other device in which one or more visual images are recorded so as to be capable (as aforesaid) of being reproduced therefrom.

(3) For the purposes of this Order, the district of a local fisheries committee shall be deemed to extend throughout the area of any council in Wales liable to pay, or contribute to the payment of, the expenses of the committee, except that none of the powers conferred by this Order on any fishery officer of a local fisheries committee shall be exercisable in respect of any matter arising within the limits of any market under the control of any county council or county borough council.

(4) Any reference in this Order –

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

(b) to a Community instrument is a reference to that instrument as it is in force on the date this Order is made.

(5) Column 2 of the Schedule (which provides in relation to each specified Community measure an indication of the subject matter of the provision) shall not be read as limiting the scope of any specified Community measure and shall be disregarded in relation to any question arising as to the construction of this Order.

Offences

3.—(1) Where any contravention of, or failure to comply with, any specified Community measure is committed in respect of any fishing boat within the sea adjacent to Wales or the entry into the sea adjacent to Wales by any fishing boat, the master, the owner and the charterer (if any) of such fishing boat shall each be guilty of an offence.

(2) Subject to paragraph (3) below, any person who, in Wales, lands, transports, stores, sells, displays or offers for sale —

(a) any fish in contravention of any specified Community measure, or

(b) any salmon (Salmo salar) or sea trout (Salmo trutta) in contravention of Articles 26(1) or 36 of Regulation 850/98,

shall be guilty of an offence.

(3) Paragraph (2) above shall not apply to a person who lands a fish, salmon or sea trout if that person is guilty of an offence under paragraph (1) above as respects the landing of that fish, salmon or sea trout.

Penalties

4.—(1) A person found guilty of an offence under article 3(1) of this Order, or under any equivalent provision in any other order extending to any part of the United Kingdom, where proceedings in respect of the offence were brought in Wales 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 measure the contravention of, or failure to comply with which founded the offence;

(b) on conviction on indictment to a fine.

(2) A person found guilty of an offence under article 3(2) of this Order, or under any equivalent provision in any other order extending to any part of the United Kingdom, where proceedings in respect of the offence were brought in Wales by virtue of section 30(2A) of the Fisheries Act 1981, shall be liable -

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

(b) on conviction on indictment to a fine.

(3) Subject to the following provisions of this article, the court by or before which a person is convicted of a relevant offence may order—

(a) the forfeiture of any fish in respect of which the offence was committed; and

(b) in respect of an offence under article 3(1) of this Order, the forfeiture of any net or other fishing gear used in committing the offence.

(4) Any person found guilty of a relevant offence shall, subject to the following provisions, be liable on summary conviction to a fine not exceeding the value of the fish in respect of which the offence was committed.

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

(6) Subject to paragraph (5), any fine to which a person is liable under paragraph (4) in respect of a relevant offence 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

5.—(1) Where a magistrates' court imposes a fine on a fishing-boat master, owner, charterer, or crew-member who is convicted of a relevant offence or an offence under article 11 of this Order, the court may —

(a) issue a warrant of distress against the boat involved in the commission of the offence and its gear and catch and any property of the person convicted for the purpose of levying the amount of the fine; and

(b) order such boat and its gear and catch to be detained for a period not exceeding three months from the date of the conviction or until the fine is paid or the amount of the fine is levied in pursuance of any such warrant, whichever occurs first.

(2) Sections 77(1) and 78 of the Magistrates' Courts Act 1980(13) (postponement of issue of, and defects in, warrants of distress) shall apply to a warrant of distress issued under this article as they apply to a warrant of distress issued under Part III of that Act.

(3) Where in relation to a fine in respect of a relevant offence a transfer of fine order under article 95 of the Magistrates' Courts (Northern Ireland) Order 1981(14) or section 222 of the Criminal Procedure (Scotland) Act 1995(15) specifies a petty sessions area in Wales this article shall apply as if the fine were imposed by a court within that petty sessions area.

Powers of British sea-fishery officers in relation to fishing boats

6.—(1) For the purpose of enforcing the provisions of article 3 of this Order, or any equivalent provision in any other order extending to any part of the United Kingdom made for the purposes of implementing a specified Community measure, any British sea-fishery officer may exercise in relation to any fishing boat within the sea adjacent to Wales the powers conferred by paragraphs (2) to (4) of this article.

(2) The officer may go on board the boat, with or without persons assigned to assist in his or her duties, and may require the boat to be stopped 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 him or her to be necessary for the purpose mentioned in paragraph (1) of this article and, in particular —

(a) may search for fish or fishing gear on the boat and may examine any fish 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 the officer to be necessary for facilitating the examination;

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

(c) for the purpose of ascertaining whether a relevant offence has been committed, may search the boat for any such 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;

(d) may inspect and take copies of any such document produced to the officer or found on board;

(e) without prejudice to sub-paragraphs (c) and (d), may require the master and any person for the time being in charge of the boat to render all such documents on a computer system into a visible and legible form, including requiring any such document to be produced in a form in which it may be taken away; and

(f) where the boat is one in relation to which the officer has reason to suspect that a relevant offence has been committed, may seize and detain any such document produced to him or her 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) above 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) require the master of the boat in relation to which the offence is believed to have taken place to take, or the officer may personally 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 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

7.—(1) For the purpose of enforcing the provisions of article 3 of this Order, or any equivalent provision in any other order extending to any part of the United Kingdom made for the purposes of implementing a specified Community measure, any British sea-fishery officer may in Wales —

(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 fish;

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

(c) examine any fish on the premises and require persons on the premises to do anything which appears to the 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 fish 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 that person’s custody or possession relating to the catching, landing, transportation, trans-shipment, sale or disposal of any fish;

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

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

(i) require any appropriate or responsible person to render any such document on a computer system into a visible and legible form, including requiring it to be produced in a form in which it 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 to him or her or found on the premises for the purpose of enabling the document to be used as evidence in proceedings for the offence.

(2) The provisions of paragraph (1) above shall apply with necessary modifications in relation to any land used in connection with any of the activities described in paragraph (1) above, or in respect of any vehicle which a British sea-fishery officer has reasonable cause to believe is being used to transport fisheries 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 justice of the peace on sworn information in writing is satisfied -

(a) that there is reasonable ground 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) 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 that the premises are unoccupied, or that the occ upier is temporarily absent and it might defeat the object of the entry to await the occupier’s return;

the justice may by warrant signed by him or her, and valid for one month, authorise a British sea-fishery officer to enter the premises, if need be by reasonable force, and to take with him or her such persons as appear to the officer to be necessary .

Powers of British sea-fishery officers to seize fish and fishing gear

8.  In Wales and within the sea adjacent to Wales, any British sea-fishery officer may seize—

(a) any fish (including any receptacle which contains the fish) 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 course of the commission of such an offence.

Powers of other officers

9.—(1) For the purpose of enforcing the provisions of article 3 of this Order, or any equivalent provision in any other order extending to any part of the United Kingdom made for the purposes of implementing a specified Community measure, in so far as any such provision applies to undersized fish, any of the officers listed in paragraph (2) below may, when acting in Wales or within the sea adjacent to Wales, at all reasonable times –

(a) go on board any British fishing boat,

(b) enter any land or premises (other than a dwelling) used for carrying on any business in connection with the treatment, storage or sale of fish,

(c) may search for and examine any fish in any place, whether on board a fishing boat or elsewhere, and whether in a receptacle or not; and

(d) may seize any fish in respect of which the officer has reasonable grounds to suspect that a relevant offence in relation to undersized fish has been committed.

(2) The officers referred to paragraph (1) of this article are –

(a) any officer authorised by the National Assembly for Wales,

(b) any officer of a market authority in Wales, acting within the limits of any market which that authority has power to regulate; and

(c) any fishery officer of a local fisheries committee acting within any part of the district of the committee which lies in Wales or within the sea adjacent to Wales.

(3) For the purpose of enforcing the provisions of article 3 of this Order, or any equivalent provision in any other order extending to any part of the United Kingdom made for the purposes of implementing a specified Community measure, in so far as it relates to nets and other fishing gear, any fishery officer of a local fisheries committee may, within any part of the district of the committee which lies in Wales or within the sea adjacent to Wales, go on board any British fishing boat and search for and examine all nets or other fishing gear and any fish carried in that boat, and may seize any net or other fishing gear in respect of which the officer has reasonable grounds to suspect that a relevant offence in relation to nets or other fishing gear has been committed.

Protection of officers

10.  An officer or a person assisting him or her by virtue of articles 6(2), 7(1)(b) or 7(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 on him or her by articles 6 to 9 of this Order if the court is satisfied that the act was done in good faith, that there were reasonable grounds for doing it and that it was done with reasonable skill and care.

Obstruction of officers

11.  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 British sea-fishery officers by articles 6, 7 or 8 of this Order;

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

(c) assaults an officer who is exercising any of the powers conferred on him or her by articles 6 to 9 of this Order or intentionally obstructs any such officer in the exercise of any of those powers;

shall be guilty of an offence and liable –

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

(ii) on conviction on indictment to a fine.

Provisions as to offences

12.—(1) Where any offence under article 3 of this Order committed by a body corporate 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, that person, as well as the body corporate, shall be guilty of the offence and liable to be proceeded against and punished accordingly.

(2) Where any offence under article 3 of this Order committed by 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 partner, that partner, as well as the partnership, shall be guilty of the offence and liable to be proceeded against and punished accordingly.

(3) Where any offence under article 3 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.

Proceedings

13.—(1) A local fisheries committee may take proceedings under any of the provisions listed in paragraph (2) of this article in respect of any offence occurring within any part of the district of the committee which lies in Wales or within the sea adjacent to Wales.

(2) The provisions referred to in paragraph (1) are —

(a) article 3(1) of this Order, where the offence is founded on a contravention of, or failure to comply with –

(i) Articles 4, 6, 7, 8, 9, 11, 14 to 16, 18, 19, 26 and 30 to 34 of Regulation 850/98, or

(ii) paragraphs 4, 6 and 9 of Annex V of Regulation 2742/99; or

(b) article 3(2)(a) of this Order.

Admissibility in evidence of logbooks and other documents

14.—(1) Any—

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

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

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

(d) document drawn up under Articles 9 or 13; and

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

of Regulation 2847/93 shall, in any proceedings for a relevant offence, be evidence of the matters stated therein.

(2) For the purpose of paragraph (1), “required information” shall mean —

(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.

Revocation

• 15.  The Sea Fishing (Enforcement of Community Conservation Measures) Order 1997(16) and the Sea Fishing (Enforcement of Community Conservation Measures) (Amendment) Order 1997(17) are hereby revoked in so fa r as they apply to Wales and to the sea adjacent to Wales.

Signed on behalf of the National Assembly for Wales under section 66(1) of the Government of Wales Act 1998(18).

Dafydd Elis Thomas

The Presiding Officer of the National Assembly

10th August 2000