Scottish High Court of Justiciary Decisons

ANDREW JOHN GRANT SCOTT AND DEREK ALEXANDER KEITH v. PROCURATOR FISCAL, PERTH [1999] ScotHC 11 (14th January, 1999)

Both appellants were charged on a summary complaint in the Sheriff Court of Tayside Central and Fife at Perth. The charge contained in the complaint was in the following terms:

The words "and (8)" were added by amendment during the trial, which took place on 17 March 1997 and 8 May 1997. The sheriff delivered his verdict on 22 May 1997, finding both accused guilty as libelled. The court then admonished and dismissed the accused. The matter comes before this court by way of separate Stated Cases on behalf of each appellant. There are slight differences between the two Stated Cases but the same arguments were presented to this Court and there is no material difference between the two appeals.

Article 3 of The River Earn Catchment Area Protection Order 1990 is in the following terms:

Article 4 of the 1990 Order states:

The 1990 Order was made by the Secretary of State in exercise of the powers conferred upon him by section 1 of the Freshwater and Salmon Fisheries (Scotland) Act 1976. Section 1 of the 1976 Act empowers the Secretary of State to make a protection order. Section 1(2)(b) provides:

It will be observed that the prohibition relates to "freshwater fish in the inland waters". Section 1(8) provides:

From the facts which the learned sheriff found admitted or proved it appears that on 17 March 1996 the appellants were observed on the bank of the south shore of Loch Earn using spinning rods for fishing in the Loch. They were approached by a water bailiff and later were approached by the same water bailiff and by police officers. On each occasion, it is stated,

The findings further narrate that the tackle which they were using was of a kind that would be likely to take a number of different species of fish in Loch Earn, such as brown trout, rainbow trout, pike or perch, all of which are freshwater fish. Finding 3 continues:

It was not in dispute that neither appellant had written permission to fish in the loch or legal right of the kind envisaged in Article 3 of the 1990 Order. The full facts admitted or proved are set forth in the Stated Case and it is unnecessary to do more for the purposes of this appeal than to note the following other matters. (1) The sheriff narrates that the appellants claimed, when approached by the water bailiff and the police, that they were fishing for rainbow trout. (2) Rainbow trout were likely to have been one of the species of fish then in Loch Earn and also in the River Earn. (3) Rainbow trout, whether or not they have a migratory tendency, spawn in fresh water, feed in fresh water and live in fresh water. (4) On the western side of North America there are found in the wild rainbow trout which the sheriff narrates are "not of the same species as the brown trout native to the United Kingdom". A small proportion of American wild rainbow trout migrate to sea and when they return to fresh water are known as "steelheads". (5) There was evidence before the sheriff to the effect that a proportion of rainbow trout which live in fresh water in the United Kingdom also migrate to sea and may return to fresh water. The proportion is not known but is found to be "very small indeed". The overwhelming majority of rainbow trout in the United Kingdom are non-migratory. In this context the sheriff states

On the basis of the facts and for the reasons explained in his note the sheriff concluded:

Under section 9(1) of the 1976 Act "freshwater fish" are, unless the context otherwise requires, to have the same meaning as in section 24(1) of the Salmon and Freshwater Fisheries (Protection)(Scotland) Act 1951. Section 24(1) of the 1951 Act contains the following:

When the appeals were called before this court on Friday 30 October 1998 counsel for Andrew John Grant Scott intimated her withdrawal from the case. Mr. Scott then indicated that he wanted to present his own appeal. Mr. Keith intimated that he did not have counsel but had decided to present his own appeal. Neither appellant sought any adjournment for the purposes of preparation or to seek legal representation. Accordingly Mr. Keith presented his submissions; these were adopted by Mr. Scott. Mr. Scott added that it had been and was the intention of the appellants to establish a test case. Both appellants had been represented by solicitors in the Sheriff Court. The submissions that they wished to make can be accurately summarised as follows:

(1) The appellants shared the common intention of fishing for steelheads and for no other kind of fish. Whilst accepting that the fishing tackle which they employed was perfectly capable of catching freshwater fish within the meaning of the definition quoted above, neither appellant had any intention of catching any such fish; and, if any such fish were caught, they would have returned the fish to the water. They were not charged with "taking" and there was no intention to take any fish other than steelheads. They accepted that the likelihood of catching steelheads was very small and that the most likely fish to attach to the line would be trout, which it was accepted fell within the statutory definition of freshwater fish. However, it was submitted that the appellants were entitled to be acquitted on the ground that they were not "fishing for...freshwater fish" on the occasion in question; the fish that they were "fishing for" were steelheads which were not "freshwater fish" within the meaning of the statutory definition. In relation to the first branch of this argument, it was submitted that the expression "fishing for" required an investigation into the object or purpose of the person who was using the fishing tackle. If a person's object or purpose was to fish for fish not falling within the definition of "freshwater fish" then he could not be found guilty of the offence created by section 1(8) of the 1976 Act. The test was one of his subjective intention or purpose. The test was not one involving the probabilities of his catching prohibited fish with the tackle being used. In relation to the second branch of the argument, the submission was that steelheads were properly to be described as falling within the words "any kind of fish which migrate between the open sea and tidal waters". It was pointed out that the definition starts off with a generality by stating that "Freshwater fish" means any fish living in fresh water; but that it goes on to include certain creatures, namely trout, eels and the fry of eels; and then excludes others, namely salmon and fish "which migrate between the open sea and tidal waters". The exclusionary words, it was submitted, were clearly there to exclude from the definition fish which would otherwise be included by the part of the definition preceding the words "but exclusive of". Accordingly, what was excluded, apart from salmon, was any kind of fish living in fresh water provided it was a fish of a kind which migrated between the open sea and tidal waters. That was a description which exactly fitted steelhead trout which, at least from time to time, live in fresh water and, as the sheriff's findings demonstrated, do migrate to the open sea and back, passing through tidal waters. The statutory scheme did not envisage the granting of written permissions in respect of tidal waters because the prescribed area did not include tidal waters.

It was further submitted that if the meaning of the words "Fishing for" in the definition was obscure then, as the statute was a penal statute, the benefit of any ambiguity or obscurity should be given to the citizen; the statute should receive a benevolent construction in accordance with the ordinary rules. Reference was made to a pamphlet published by the Scottish Office Agriculture, Environment and Fisheries Department in 1993 through HMSO bookshop. Paragraph 3 thereof contains the following:

The exclusion contained in the statutory definition of "freshwater fish", was in their submission, apt to include fish of the kind which they maintain they were fishing for.

In the course of the debate, the attention of the appellants was drawn to the statement by the sheriff, appearing in his note (on page 11 of the Keith print of the Stated Case) relating to the evidence as to what the intention of the appellants was. What the sheriff states there is:

That, it appears, is the true basis for the sheriff's finding-in-fact No. 2 which commences:

That finding-in-fact is fatal to the appeal in both instances because, taken in the context of the other findings, and more particularly with the explanation quoted above which appears in the sheriff's note, it is plain that the sheriff rejected their evidence that they were attempting to catch steelheads and no other kind of fish. He holds as a fact that they were attempting to catch other fish. Accordingly, even if we could be persuaded that steelheads fell within the definition of "freshwater fish" for any of the reasons advanced, the conviction would have to stand. In each case, the sheriff poses the question "On the foregoing facts was I entitled to convict the appellant?". In the light of the finding that they were in fact not fishing for steelheads alone but were fishing for other species of fish these questions must be answered in the affirmative. It follows that in each case the appeal must be refused.

The other questions which are contained in the two Stated Cases relate to the distinct but necessary submission that steelheads fell outwith the statutory definition of freshwater fish. The debate before us raised a number of interesting and quite difficult questions as to what that definition might embrace. Unfortunately, however, principally because the appellants were not legally represented, the court did not receive full submissions. Neither the appellants nor the Crown referred the court to any authority whatsoever bearing upon the matters which we have outlined. In these circumstances, while recognising that the case had the potential to raise interesting and important questions to which many people might wish to know the answer, I am satisfied that it would not be appropriate for me to express opinions, which would necessarily be obiter and non-authoritative, in relation to questions which had not been fully debated before us. Accordingly, I wish to express no concluded view on the question as to whether or not a person is to be held to be "fishing for" a particular species of fish in circumstances in which it is extremely likely that with the tackle he is using he will, if he catches anything, catch such fish, and highly unlikely that he will catch fish of the kind for which he claims to be fishing. Nor do I find it necessary or appropriate for me to express obiter views about the true meaning and content of the definition of freshwater fish in the 1951 Act and elsewhere. Even if all the submissions advanced on behalf of the appellants in relation to these matters were accepted, the appeals would necessarily fail on the basis of fact which the sheriff has found established.

For the foregoing reasons, I consider that we must answer question 4 in the appeal by Derek Alexander Keith in the affirmative. Question 5 in the appeal for Andrew John Grant Scott must also be answered in the affirmative. For the reasons explained, the other questions posed in the Stated Case will not be answered.