APPEAL COURT, HIGH COURT OF JUSTICIARY
Appeal No: 247/99
OPINION OF THE COURT
delivered by LORD COULSFIELD
PROCURATOR FISCAL, Kilmarnock
Appellant: Burns, Q.C.; Macbeth Currie & Co.
Respondent: Cathcart, A.D.; Crown Agent
6 August 1999
The appellants were charged along with Francisco Carnes Diaz on a complaint alleging a contravention of Article 3 of the Sea Fish Licensing Order 1992 as amended and section 4(3) of the Sea Fish (Conservation) Act 1967 as amended. The charge alleged that Carnes Diaz, as master of a fishing vessel, the White Pearl, registered at Ayr and the appellants, as owners of the vessel, fished in a defined sea area within British fishery limits otherwise than as authorised by a licence under the Sea Fish Licensing Order 1992 as amended in respect that between 28 and 31 December 1996 they retained on board 2,575 kilograms of hake, 720 kilograms of monkfish, 108 kilograms of nephrops and 25 kilograms of megrims.
The case was adjourned on a number of occasions and eventually came to trial before the sheriff on 16 November 1998. At the trial, the appellants were represented but Carnes Diaz was not present and a motion was made to adjourn the trial in order that arrangements could be made for him to be present. The sheriff refused that motion and also refused a motion to adjourn the case until the outcome of a reference to the European Court in a similar case which had arisen in Stornoway. The appellants did not seek to challenge the sheriff's decision on the question of the adjournment.
The sheriff's findings in fact are brief and to the point. He finds that the appellants are the owners of the fishing vessel White Pearl, registered at Ayr as AR99. He finds that they are the holders of a licence to fish issued by the Scottish Office but that between the dates libelled the licence did not entitle the owners to fish for four species in the whole sea area, namely the species listed in the complaint. He finds, further, that between the dates libelled the master of the vessel caught and retained on board the quantities of the various species of fish libelled. At the conclusion of the Crown evidence, a motion was made that there was no case to answer which the sheriff refused. The appellants thereafter led no evidence and after further submissions the sheriff convicted the appellants.
The issue which arises in the appeal is whether the sheriff was entitled to hold that the facts as regards the catching and retention on board of the specified quantities of the four species of fish libelled had been established by sufficient evidence. The sheriff states that the Procurator Fiscal relied on section 4C(2) of the Sea Fish Conservation Act 1967 which provides that, in any proceedings in Scotland for an offence under section 4 or 4A, any document which constitutes or contains an entry in a log book kept, or purported to be kept, under an enforceable Community obligation relating to fishing activities by the master of a vessel shall be received in evidence without being produced or sworn to by any witness and shall be sufficient evidence of the matters appearing therein or appearing therefrom. The log book of the White Pearl was produced in the proceedings. It consists, so far as material, of a printed form containing a number of columns under the heading "Catch by species kept on board in kilograms live weight or number of units". From inspection of the book it is clear that figures were entered under the columns for hake, monkfish, megrim and nephrops in respect of the days included in the libel and these figures added up to the amounts specified in the complaint. However, as the log book now stands, a line has been drawn across each of the entries for the dates in question and at the foot of the page, in a space for "comments" an entry has been made referring to the four species and stating "Returned to sea due no quota". The entries bear to be signed by or on behalf of the master of the vessel. In addition, there is a line available in the form for "Estimated total discards" and in that line figures corresponding to the amounts specified in the complaint have been entered.
The sheriff heard evidence from Sub Lieutenant Timon of the Irish Navy and states that that evidence confirmed, if confirmation were necessary, that the fish libelled were retained on board in contravention of the law. Later in his note the sheriff says:
"I have evidence from Sub Lieutenant Timon and from Stephen Alexander, a British Sea Fishery Officer, on the completion of the sheets of the log book. They deponed that only fish caught and kept on board would be recorded in the section headed 'Catch by species kept on board in kilograms live weight or number of units' and that fish caught without a quota would have been discarded without being recorded in terms of a daily catch as shown on Crown production No. 1 (the log book). Mr. Timon also deponed that the diagonal lines drawn through certain figures, the totalled figures that appeared adjacent to the entry 'Estimated total discount' and the handwritten note at the very foot of the page were not present when he inspected the log book on 2 January 1997.
It appeared to me that this evidence was capable of being regarded as a record of fishing operations which occurred on the dates stated and of the catches of the prohibited species of fish of the quantities therein stated".
The point taken before the sheriff and repeated before us was that in the circumstances the log book produced did not prove the facts necessary for establishing the commission of the offence. What the book itself bore to show, as produced in court, was that the quantities of the species of fish concerned had been entered and then scored out and that those entries, coupled with the entries for the estimated total discards, had the result that the log did not show that fish had been caught and retained on board. Only one witness had deponed to the presence of the fish on board when the vessel was boarded so that there was no sufficient evidence of the commission of the offence. The log itself, as produced, at face value did not show that the offence had been committed. It was added that it was understood that the normal practice in cases of this kind would be to photograph the log as it was at the time when the vessel was boarded to provide a proper record of the situation as entered in the log at that date.
In our view, what is important in this case is that there was direct evidence, which the sheriff accepted, that the quantities of fish in question were on board the vessel on the date when the boarding was carried out. That was spoken to by Sub Lieutenant Timon. There was also evidence, both from Sub-Lieutenant Timon and from another qualified witness, to the effect that if the fish had been caught and discarded no entry would have been made in the log. In these circumstances, the fact that entries were made in the log is an independent fact which is capable of corroborating the evidence of Sub-Lieutenant Timon, even though the entries bear to have been crossed out. The only significance in the provisions of section 4C(2) for the purposes of the present case is that it is not necessary to prove that the document produced was the log properly kept: this is not a case in which proof of the offence depends upon what appears in the log book without further evidence. In all the circumstances, the first two questions in the stated case should be answered in the affirmative and the appeal refused in relation to conviction.
There was also an appeal against the amount of the fine imposed, which was £25,000. It was submitted that the maximum fine under the legislation was £50,000. The value of the illegal catch was £5,400 and the returns from the fishing enterprise fell to be divided as to 60% to the owners of the vessel and 40% to the crew. In the whole circumstances, therefore, it was submitted that the fine was excessive. In our view there was no merit in these submissions. The appellants were engaged in a commercial enterprise and were fishing on a substantial scale and retaining substantial quantities of fish illegally caught. In our view the fine was well within the discretion of the sheriff.