Jersey Unreported Judgments

ROYAL COURT

(Samedi Division)

25 March 1999

Before: FC Hamon Esq Deputy Bailiff

and Jurats Quérée and Le Breton

AG

-v-

Robert Titterington

Sentencing following conviction on 24 February 1999, on a not guilty plea to:

1 count of contravening the Shellfish (Underwater Fishing) (Jersey) Regulations, 1998, Regulation 2(1), by taking ormers from the sea whilst totally/partially submerged and breathing with breathing apparatus (count 1);

1 count of contravening the Shellfish (Underwater Fishing) (Jersey) Regulations, 1998, Regulation 2(3), by being the master of a vessel, which was being used for taking ormers from the sea (count 2); and

1 count of contravening the Shellfish (Underwater Fishing) (Jersey) Regulations, 1998, Regulation 4(2), by obstructing a Fisheries Officer in the exercise of his powers under Regulation 4(1) to seize any shellfish taken in contravention of the said Regulations, by throwing a quantity of ormers overboard (count 3).

(On 24 February 1999, [1999.039] co-accused, Gerard Paul McClafferty, who had pleaded not guilty to the following counts:

1 count of contravening the Shellfish (Underwater Fishing) (Jersey) Regulations, 1998, Regulation 2(1), by taking ormers from the sea whilst totally/partially submerged and using breathing apparatus (count 1).

1 count of contravening the Shellfish (Underwater Fishing) (Jersey) Regulations, 1998, Regulation 4(2), by obstructing a Fisheries Officer in the exercise of his powers under Regulation 4(1) to seize any shellfish taken in contravention of the said Regulations by throwing a quantity of ormers overboard (count 2).

was found him not guilty on count 1, but guilty on count 2, and fined £200 with no order for costs].

Age: 35

Details of Offence:

Following information from a number of reliable sources that large quantities of ormers had been exported from the Island the Senior Fisheries Inspector commenced observations from a vantage point at St. Brelades Bay. Titterington and McClafferty were seen to launch a semi-rigid inflatable boat (the ‘Black Knight’) and head straight to the Minquiers. The Senior Fisheries Inspector and two other Officers boarded the Fisheries Patrol vessel ‘Norman Le Brocq’ and went to the Minquiers. At some distance from the Minquiers the Senior Fisheries Officer and another Officer boarded a smaller vessel, drew alongside some rocks, alighted from the vessel and the Senior Fisheries Inspector commenced observations using binoculars. Titterington and McClafferty were seen, inter alia, diving in shallow water on a good ormering tide in an area ideally suited to ormers. The Senior Fisheries Inspector saw McClafferty lift his diver’s mesh gathering bag on board the vessel and gave evidence that the bag contained large brown objects the size and shape of ormers but the Officer could not state for certain that the bag contained ormers. (McClafferty was acquitted on count 1 of gathering ormers). A short while later the Senior Fisheries Inspector saw McClafferty lift on board Titterington’s diver’s gathering bag which the Officer was certain was full of ormers (count 1 Titterington). The Senior Fisheries Officer and his colleague boarded their vessel and raced around the rocks to board the ‘Black Knight’. Immediately Titterington became aware that the Fisheries Officers might be approaching, he instructed McClafferty to jettison Titteringtons gathering bag over the side of the vessel (count 3 Titterington, count 2 McClafferty). The Officers boarded the ‘Black Knight’. Both gathering bags had disappeared, but a shiny ormer hook and a rod-like hook, which had both been used very recently were found in the vessel.

Titterington exercised his right to remain silent when questioned (and refused to endorse the record of interview). McClafferty answered some questions when interviewed but appeared reluctant to answer any question which might incriminate Titterington. Both accused denied the infractions. Following the 1½ day trial on 24 and 25 February 1999, Titterington was found guilty on all three charges. McClafferty was acquitted on count 1 but found guilty on count 2. On 24 February 1999, McClafferty was sentenced to a fine of £200. McClafferty had travelled from Scotland to face trial, was about to embark on a years backpacking holiday to Australia and had £500 only in liquid assets. Prior to being sentenced McClafferty apologised through his counsel for reaching an agreement with Titterington to give identical but false evidence on oath before the Court, namely that Titteringtons gathering bag contained 10-12 brown crabs, 5 or 6 dozen scallops and 2 cuttlefish which Titterington had gathered earlier that afternoon. The sentencing of Titterington was adjourned in order for a background report to be prepared.

Details of Mitigation:

Only one bag of ormers taken. Good husbandman of scallop stocks (instrumental in banning of dredging sea bed for scallops and introduction of new regime for the licensing of diving for scallops. Successfully runs scallop farm at Noirmont bringing financial benefit to the Island). No evidence of depletion of ormer stocks. Previous convictions for illegal diving for ormers in March and October 1990 and obstruction of Fisheries Officer in March 1990. Savings of £2,000 and net weekly income of £120. Fisherman full-time since 1984 unable to pursue any other manual career due to foot injury. If vessel confiscated will lose livelihood.

Previous convictions:

March 1990: obtaining ormers and scallops from sea with use of breathing apparatus (fined £200). October 1990: obtaining ormers from sea with use of breathing apparatus and obstructing Fisheries Officer (fined total of £500). 1988: common assault male.

Conclusions:

Count 1: £1,250 fine, or 6 weeks imprisonment in default of payment

Count 2: £250 fine, or 1 week imprisonment in default of payment, consecutive

Count 3: £1,500 fine, or 6 weeks imprisonment in default of payment, consecutive

TOTAL: £3,000 fine or 13 weeks imprisonment in default of payment

Sentence and Observations of the Court:

Count 1: £1,000 fine, or 4 weeks imprisonment in default of payment

Count 2: £250 fine, or 1 week imprisonment in default of payment, consecutive.

Count 3: £1,000 fine, or 4 weeks imprisonment in default of payment, consecutive.

TOTAL: £2,250 fine or 9 weeks imprisonment in default of payment.

£1,500 costs; vessel confiscated.

Fine to be paid at rate of £50 per week.

P Matthews Esq Crown Advocate

Advocate RG Morris for the accused

JUDGMENT

THE DEPUTY BAILIFF: We have no doubt that in October, 1998, on the lowest tide of the year, Mr Smith, the Fisheries Officer, was not watching St. Brelades Bay by chance. Nor was it by chance that the ‘Black Knight’ set out that afternoon to arrive at the Minquiers to coincide with that very low tide.

Titterington was not co-operative but continued to deny the matter throughout the trial. He set up a preposterous alibi that a man who owns a scallop farm in St. Aubins Bay was gathering scallops at the Minquiers. He involved his co-accused in that business. All this was in the light of devastating evidence produced against him by dedicated Fisheries Officers.

He tells us through his counsel that he earns £370 a week on average. He tells us through his counsel that that is what he declares to the Income Tax.

We have to recall that days before the trial opened he attempted to assign the four boats that he owns to his girlfriend and we heard Mr Titterington on oath.

The gathering of ormers is a tradition which has been enjoyed by generations of Jerseymen. It is the Fisheries Officers who have the difficult duty to preserve the stocks which we are told need to consolidate at 10 metres below the low tide level before they move up into shallow water where they can be gathered.

A professional fisherman who breaks the rules by diving for ormers is not only grossly irresponsible, but he is abusing the trust of all the Jerseymen to whom ormering is a very real recreational pleasure.

Mr Morris, in his very helpful address to us, accepts that there may be a need for a deterrent sentence. The fact that many illegally caught ormers are being sold in London restaurants perhaps shows the extent of the problem that the Fisheries Officers face. This Court believes that if we are to have a deterrent sentence it must be an effective one.

We also regard the obstruction of a Fisheries Officer by a man who is the President of the Jersey Commercial Divers Fishing Association as very serious.

Stand up, please, Titterington. On count 1, you are fined £1,000, or four weeks imprisonment in default of payment. On count 2, you are fined £250 or one week imprisonment in default of payment. On count 3, you are fined £1,000 or four weeks imprisonment in default of payment. The periods of default to be consecutive. We fine you £1,500 in respect of costs and would point out that those costs could well have been avoided had you pleaded guilty. We further order the confiscation of the ‘Black Knight’ and give the Crown permission to sell this vessel.

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