England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		27th November 2003

Thursday, 27th November 2003

1. MR JUSTICE MAURICE KAY: This is an appeal by case stated from a decision of the Justices for the Commission Area of Dyfed-Powys sitting in Tenby. The Magistrates had before them informations preferred by South Wales Sea Fisheries Committee as prosecutor against Malcolm Saunders and IF Limited. In the event, the Magistrates acquitted both defendants in relation to all charges, hence this prosecutor's appeal.
2. The informations against Mr Saunders, who was the skipper of a fishing vessel known as Admiral Blake, made the following allegations:

"1. On 19th July 2002 near Old Castle Head, Manorbier, Tenby... you... used in a manner constituting a contravention of South Wales Sea Fisheries Committee byelaw "maximum vessel size" in that the vessel capacity units as defined for the said vessel were greater than the prescribed limit, an offence under section 11(2) of the Sea Fisheries Regulation Act 1966.

"2. [On the same day and in the same place] you... used in a manner constituting a contravention of South Wales Sea Fisheries Committee byelaw "Boat Fishing (catch returns) permit" in that no permit for the said vessel had been issued to the owner, an offence under section 11(2) of the Sea Fisheries Regulation Act 1966."

3. There were corresponding allegations against IF Limited, the owner of the vessel. However, the prosecutor does not seek to appeal in relation to IF Limited.
4. The facts found by the Magistrates included the following:

"The vessel "Admiral Blake" is a beam trawler. The vessel... was oversized for operating within the Sea Fisheries Committee Area. The vessel...was operating in the area of Old Castle Head... The "Admiral Blake" was witnessed by South Wales Sea Fisheries officers with its nets in the water within the six mile limit. The nets... had captured rocks and sand. Skipper Malcolm Saunders ordered the "Admiral Blake" to enter the 6 mile limit. The... "Admiral Blake" deliberately went into the 6 mile limit for the specific purpose of breaking open his nets on rocks and pinnacles on the seabed, a safety operation. That the nets were broken open to release both the debris, rocks et cetera as well as fish back into the deep... The nets were then hauled aboard the "Admiral Blake" for the purposes of releasing cod ends [that term relates to a part of the net rather than parts of fish]. Within the six mile limit the nets were lowered again in an open state into the water to stream them of sand and other debris remaining in the nets".

5. On the basis of those findings the Magistrates expressed these conclusions:

"1. That at no material stage while the "Admiral Blake" was within the six mile area of the South Wales Sea Fisheries Committee was any fishing undertaken.

"2. That causing the nets of the vessel to be in the water for the purposes of a safety operation of clearing them of debris, or streaming them, does not constitute fishing".

Accordingly they acquitted both defendants.

6. The question posed for this court by the case stated is in these terms:

"Whether a person is engaged in a fishing operation or using a method of fishing when he comes within a Sea Fisheries District in order to break his nets and release debris, rocks and fish back into the sea or whether he has ceased to engage in a fishing operation or to use a method of fishing at the point that he decides he needs to break his nets to release the contents into the sea, within the meaning of Byelaws 38 and 41 of the South Wales Sea Fisheries Committee Byelaws."

7. It is necessary, now, to set out the statutory framework within which this case has to be considered. By section 1 of the Sea Fisheries Regulation Act 1966 the Minister may create a Sea Fisheries District comprising any part of the sea within the national or territorial waters of the United Kingdom adjacent to England or Wales and define the limits of that district. When such legislation was first put on the statute book the territorial limit was three miles. It is now six miles.
8. By section 2 a local fisheries committee is required to be constituted by representatives of local authorities and also representatives of the Environment Agency and ministerial appointees who are acquainted with the needs and opinion of fishing interests.
9. By section 5 a local fisheries committee may make byelaws to be observed within its district for all or any of stated purposes including:

"(a) for restricting or prohibiting, either absolutely or subject to any exceptions and regulations, the fishing for or taking of all or any specified kinds of sea fish during any period specified in the byelaw;

(b) for restricting or prohibiting, either absolutely or subject to such regulations as may be provided by the byelaws, any method of fishing for sea fish or the use of any instrument of fishing for sea fish and for determining the size of mesh, form and dimensions of any instrument of fishing for sea fish."

10. Such byelaws are required to be confirmed by the Minister. Of relevance to this case are byelaws 38 and 41. Their material parts provide as follows:

38. "No person shall use any method of fishing for sea fish or use any instrument of fishing for sea fish from or in conjunction with a vessel which has a capacity greater than 150 units."

41. "No person shall use, cause or permit or assist any other person to use a mechanically powered boat in any fishing operation in any part of the South Wales Sea Fisheries Committee District except under a permit issued to the owner of the boat by the Committee and signed by the Director and in accordance with the [stated conditions]..."

11. By section 10 of the Act the local committee may appoint fishery officers for the purpose of enforcing the observance within their district of the relevant byelaws. For this purpose such fishery officers are provided with significant powers.
12. Finally, by section 11(2):

"Where any vessel is used for fishing in any manner constituting a contravention of any byelaw of a local fisheries committee having effect by virtue of section 5(1)(a) or (b) above, the skipper and the owner of the vessel shall, subject to subsection (3) below, each be guilty of an offence and liable on summary conviction to a fine not exceeding [level 5 on the standard scale]."

13. Subsection (3) provides the owner but not the skipper of the vessel with a due diligence defence.
14. That then is the factual and legal framework. Returning to the informations that were preferred against the defendant in the Magistrates' Court, it seems to me that they were drafted in an unhelpfully wide and possibly duplicitous way. Clearly the case proceeded on the basis that both byelaw 38 and 41 were in play. As Mr Lewis points out, that gave rise to a number of possibilities for consideration.
15. In relation to byelaw 38 there fell for consideration the questions of using a method of fishing for sea fish, using an instrument of fishing for sea fish and, in both cases, either from or in conjunction with an oversized vessel.
16. Byelaw 41 brought into play the possibilities of use and the causing or permitting or assisting in the use of such a vessel without a permit. Although the question posed by the case stated only refers to the phrases, "engaged in a fishing operation" (derived from byelaw 41) and, "using a method of fishing" (derived from part of byelaw 38), it seems to me that we should also consider, "using an instrument of fishing," if we are to provide the range of guidance sought by the appellant prosecutor.
17. The precise issues of construction raised in this case are not the subject of authority. However, some assistance is to be derived from Alexander v Tonkin [1979] 1 W.L.R. 629. In that case a fishing vessel was within the three mile limit off the Cornish coast where fishing by the use of a purse seine net was prohibited. When the vessel was boarded by the authorities its purse seine net had been "pursed" so that no more fish could be caught and the catch was being pumped on deck.
18. The justices held that fishing under the relevant regulation continued until all the fish had been pumped on deck and, therefore, they convicted the defendant. His appeal was dismissed. The Divisional Court took the view that, although once the net had been "pursed" no more fish could be caught in it, further labour was still necessary to remove the fish from the sea and to reduce them to useful possession. Consequently, fishing was still continuing while the fish were being pumped on deck.
19. Caulfield J came to that conclusion, relying on an old authority, R v Frederick Gerring Jr [1896], 5 Exch.C.R. 164, which had turned on the interpretation of Canadian legislation. The notion of labour being required to save the fish from the sea and to reduce the property to useful possession came directly from that old authority. Caulfield J added at page 635, E to F:

"In this particular case, that case is pertinent. The reasoning is pertinent and I propose to follow it. The statute is different; the principle is the same. Had fishing been completed at the time when this offence is alleged to have been committed? I think the plain answer is no, that while the fish had been contained in the seine and to that extent all fish that were intending to be caught had been caught, the act of fishing had not been completed at the particular time... At the time the defendant was still fishing for sea fish even though at the material time the act of enclosing the fish within the seine net had been completed."

20. There is another principle which must be kept in mind, in that the provisions with which we are concerned impose a criminal sanction. In the event of ambiguity, that must be resolved in favour of a defendant.
21. On behalf of the appellant, Mr Lewis refers to the practical difficulties of enforcement in border line situations within the six mile limit. I do not doubt that such difficulties exist. However, in my judgment, they must yield to the general principle of statutory interpretation which applies to criminal statutes. I now turn to the circumstances which require our consideration and conclusion.
22. The first question is whether Mr Saunders was "using a method of fishing" when he came within the Sea Fisheries District in order to break nets and release debris, rocks and fish back into the sea. In my judgment the plain answer to that question is that he was not. I derive assistance from Alexander Tonkin in reaching that conclusion. However, in my judgment, the natural meaning of the language is the one which was adopted by the Magistrates in construing the words "method of fishing."
23. The second question is whether Mr Saunders was, "using an instrument of fishing for sea fish." Here, the answer is less clear and obvious. However, in my judgment, viewed from the perspective of the prosecuting authority, it is, at best, ambiguous and thus calls for an answer in favour of the respondent. Although nets are, of course, instruments which are used in fishing for sea fish, they were not being so used at the material time. If, for example, a vessel was returning across the six mile limit to port and as it proceeded some task was being carried out on the nets, or some use was being made of them entirely within the confines of the vessel, it could not be said that that amounted to this offence. The reason is because the use at the time would not be in the course of fishing for sea fish. That leads me to conclude this issue of interpretation in favour of the respondent.
24. The third question, then, is whether Mr Saunders was using a mechanically powered boat, "in any fishing operation." Again, in my view, he was not, for similar reasons to those I have already stated when dealing with the wording of byelaw 38. It is obvious that no offence would be committed merely by crossing the six mile limit on the way out to or on the way back from fishing outside the limit. Nor, in my judgment, would an offence be committed by the performance entirely within the vessel of tasks connected with the expedition, for example, working on the nets or attending to fish already brought aboard. If what is done within the limit is no more than was done in the present case, that, in my judgment, would not, clearly and unambiguously, be part of "the fishing operation".
25. In my judgment, therefore, the question posed by the case stated must be answered wholly in favour of the respondent and I would dismiss this appeal.
26. MR JUSTICE MACKAY: I agree.
27. MR JUSTICE MAURICE KAY: Thank you both very much.
28. MR SAUNDERS: Do I apply for costs?
29. MR JUSTICE MAURICE KAY: Yes, you do. The costs position is that he is entitled to central funds, is he not -- defendant's costs order?
30. MR LEWIS: My Lord, that is the one thing I forgot to check. I think it is that, but I have not checked it.
31. MR JUSTICE MAURICE KAY: When a single judge sits there is a problem, but when we are in a Divisional Court I do not think there is. It is the defendant's costs order, section 16(5)(a).
32. MR LEWIS: Of the Prosecution of Offences Act, yes.
33. MR JUSTICE MAURICE KAY: You may have an order for costs from central funds.
34. MR SAUNDERS: Thank you.
35. MR LEWIS: We were just discussing, my Lord -- we do not want to go to the House of Lords -- we wondered whether, in that case, there is no point in certifying the point either.
36. MR JUSTICE MAURICE KAY: I do not think you would find any enthusiasm here or in the House of Lords.
37. MR LEWIS: No, I do not think so.
38. MR JUSTICE MAURICE KAY: Thank you very much.