IN THE SUPREME COURT OF JUSTICE
|Royal Courts of Justice|
Strand, London, WC2A 2LL
B e f o r e :
THE HONOURABLE MR JUSTICE NEWMAN
HENRICK MESSEMAKER Claiman - and - MINISTRY OF AGRICULTURE FISHERIES AND FOOD Defendant
Rupert Anderson (instructed by MAFF (Legal Dept) for the Defendant)
Crown Copyright ©
Mr Justice Newman:
(1) a fine of £3000;
(2) an additional fine of £14,022, being the value of the fish in respect of which the offence was committed.
“The masters of Community fishing vessels fishing for a stock or group of stocks shall keep a logbook of their operations, indicating particularly the quantities of each species caught and kept on board, the date and location (ICES statistical rectangle) of such catches and the type of gear used.”
“1. Member States shall ensure that the appropriate measures be taken, including of administrative action or criminal proceedings in conformity with their national law, against the natural or legal persons responsible where common fisheries policy have not been respected, in particular following a monitoring or inspection carried out pursuant to this Regulation.
2. The proceedings initiated pursuant to paragraph 1 shall be capable, in accordance with the relevant provisions of national law, of effectively depriving those responsible of the economic benefit of the infringements or of producing results proportionate to the seriousness of such infringements, effectively discouraging further offences of the same kind.
3. The sanctions arising from the proceedings mentioned in paragraph 2 may include depending on the gravity of the offence:
- fines,- seizure of prohibited fishing gear and catches,- sequestration of the vessel,- temporary immobilization of the vessel,- suspension of the licence,- withdrawal of the licence.
4. The provisions of this Article shall not prevent the Member State of landing or transshipment from transferring prosecution of an infringement to the competent authorities of the Member State of registration with the agreement of the latter and on condition that the transfer is more likely to achieve the result referred to in paragraph 2. The Commission shall be notified of any such transfer by the Member State of landing or transshipment.
1. Where an infringement of the provisions of this Regulation is discovered by the competent authorities of the Member State of landing or transshipment, those competent authorities shall take appropriate action in accordance with Article 31 against the master of the vessel involved or against any other person responsible for the infringement.
2. If the Member state of landing or transshipment is not the flag Member State and its competent authorities do not undertake, in conformity with their national law, appropriate measures including the initiation of administrative action or criminal proceedings against the natural or legal persons responsible, or do not transfer prosecution in accordance with Article 31(4), the quantities illegally landed or transshipped may be set against the quota allocated to that former Member State.
The quantities of fish to be set against that Member State’s quota shall be fixed in accordance with the procedure laid down in Article 36 after the Commission has consulted the two Member States concerned.
If the Member State of landing or transshipment no longer has a corresponding quota at its disposal, Article 21(4) shall apply mutatis mutandis the quantities of fish illegally landed or transshipped being deemed to be equivalent to the amount of the prejudice suffered, as mentioned in that Article, by the Member State of registration.
1. The competent authorities of Member States shall without delay and in compliance with their procedures under national law notify the flag Member State or the Member State of registration, of any infringement of the Community rules referred to in Article 1, indicating the name and the identification marks of the vessel involved, the names of the master and the owner, the circumstances of the infringement, any criminal or administrative proceedings or other measures taken and any definitive ruling relating to such infringement. Upon request, Member States shall notify the Commission of this information in specific cases.
2. Following a transfer of prosecution pursuant to Article 31(4), the flag Member State or the Member State of registration shall take all appropriate measures as set out in Article 31.
3. The flag Member State or the Member State of registration shall notify the Commission without delay of any measures taken in accordance with paragraph 2, along with the name and the external identification of the vessel concerned.”
“3.(1) Where there is, in respect of -
(a) any relevant British fishing boat wherever it may be;
(b) any other fishing boat which is within relevant British Fishery Limits;
(c) any entry into seas within relevant British Fishery Limits by any fishing boat; or
(d) any fishery products, premises or vehicle in England or Northern Ireland,
a contravention of, or failure to comply with a Community control measure specified in Column l of the Schedule the persons specified in the appropriate entry in Column 5 of the Schedule shall each be guilty of an offence.”
Maximum fine on summary conviction
(b) Article 6
Article l of and Annexes I,II,IIA,IV,V, VI and VII of
Requirement to keep a logbook in computer readable form or on paper, for fishing boats of l0 metres or more, and submit it to the flag Member State, and the Member State of landing, if different, within 48 hours of landing.
The master, the owner and the charterer (if any)
“4.(1) A person found guilty in England or Northern Ireland of an offence under article 3(1) of this Order, or under any equivalent provision in an order extending to any other part of the United Kingdom proceedings in respect of which were brought in England or Northern Ireland 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 the appropriate entry in Column 4 of the Schedule;
(b) on conviction on indictment to a fine.
(2) A person found guilty in England or Northern Ireland of an offence under article 3(1) of this Order, or under any equivalent provision in an order extending to any other part of the United Kingdom proceedings in respect of which were brought in England or Northern Ireland by virtue of section 30(2A) of the Fisheries Act 1981, founded on a contravention of, or failure to comply with –
(a) Articles 19a.2, 20.1, 20a or 21c.2 of Regulation 2847/93 shall also be liable -
(i) to the forfeiture of any net or other fishing gear in respect of which the offence was committed, or which was used in committing the offence, or which was used for catching any fish in respect of which the offence was committed; and
(ii) to the forfeiture of any fish in respect of which the offence was committed, or, on summary conviction only, to a fine not exceeding the value of any fish in respect of which the offence was committed; or
(b) Articles 6, 8.1, 9, 11, 12, 13 or 17.2, Articles l9b and l9c or Articles l9e, 20.2, 28c (in relation to the requirements in respect of logbooks and recording of catches on board) or 28d of Regulation 2847/93 shall also be liable to the forfeiture of any fish in respect of which the offence was committed, or to a fine not exceeding the value of any fish in respect of which the offence was committed.”
“5.(1) Where a fine is imposed by a magistrates’ court in England or Northern Ireland on the master, owner, charterer, person responsible for the vessel or any other person who is convicted by the court of a relevant offence or an offence under article 10 of this Order, the court may for the purposes of recovering the fine -
(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; or
(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.”
“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 him by virtue of article 6,7 or 8 of this Order;
(b) without reasonable excuse prevents any other person from complying with any such requirement; or
(c) obstructs any such officer who is exercising 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.”
(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 approval 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, he, 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, he 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, he as well as the association shall be guilty of the offence and liable to be proceeded against and punished accordingly.
The Magistrates’ Decision
“8. We considered the forfeiture of the catch but considered that to fine the defendant £3000 together with the cost of the fish, £14,022, was more proportionate to the offence committed.
9. The fine of £3000 represents only 6% of the maximum possible, or put another way £1000 for each day the log was not completed.
10. In our deliberations bearing in mind the aggravating and mitigating features we saw a financial penalty in the region of £20,000 as being appropriate.
11. By placing the majority of this penalty on the value of the catch we felt it more clearly showed the proportionality of the sentence as it could be seen as directly linked to any possible gain.
12. We took into account the earning of the defendant and his ability to pay the fine. We also took into account that the defendant was a servant of the owner and as such the owner could not be seen to benefit from the wrongdoing of his servant.
13. In arriving at this decision we were aware that the crew may be affected but that the contracts under which they worked and the custom and practice within the fishing industry were not our concern as one could assume that the legislators would have taken this into consideration in the drafting of the regulations. The legislation clearly allows the court to fine the value of the catch.
14. We also took into account that he was working on behalf of the owner who is his mother.
15. We also considered that no one should benefit from the offence.
16. We took into account the purpose of the legislation which is to preserve fish stocks in the waters around the United Kingdom.
17. The objective of the sentence was to punish the defendant and deter others from committing such offences.”
The Magistrates posed the following question of law for the court:
“18. The question of law on which the opinion of the High Court is sought is whether, in the absence of established case law and precedent, we were right to add the additional penalty to the basic fine.”
(1) the value of the master’s proprietary interest in the fish (if any); and or(2) the principle that the court should only impose a financial penalty on a defendant which reflects his culpability in the offence and which, upon the evidence, he has the means to pay.
These conclusions, it was submitted, arose upon a proper interpretation of both the EEC Regulation and the Order. Particular reliance was placed on the terms of Article 31(2) of the EEC Regulation:
“The proceedings initiated pursuant to paragraph 1 shall be capable, in accordance with the relevant provisions of national law, of effectively depriving those responsible of the economic benefit of the infringements or of producing results proportionate to the seriousness of such infringement, effectively discouraging further offences of the same kind.”
As to the Order, it was submitted that the additional fine, being an alternative to forfeiture, the principles applicable to forfeiture and confiscation in other spheres of criminal activity (for example in connection with drugs and customs and excise offences) should apply. (See R v Porter (1990) 12 Cr App R (S))
(1) has an interest in the whole catch, or
(2) the owner or charterer are prosecuted.
Having regard to the above I am entirely satisfied that the statutory regime expressly contemplates the objectives of the fisheries policy being achieved in proceedings taken against the master alone. Further, I am satisfied that because the legislation renders the owner (or charterer) liable upon proof of a contravention or failure to comply by the master it is rational for the court to pay regard to that factor and to impose an additional fine calculated by reference to the owner’s interest in the catch.
Lord Justice Laws: