Scottish High Court of Justiciary Decisons

PROCURATOR FISCAL, WICK v. KENNETH WEST [1999] ScotHC 222 (15th September, 1999)

The respondent went on trial in Wick Sheriff Court on a summary complaint. On 18 March 1999, at the conclusion of the Crown case, the sheriff upheld a submission made on his behalf that there was no case to answer. In this appeal the question for this court is whether the sheriff was entitled to do so and accordingly acquit the respondent.

The charge was in the following terms:

The evidence in the Crown case comprised the evidence of a fisheries officer, a number of documentary productions and a joint minute of agreement between the parties in regard to a number of matters which were not in controversy. The evidence which is of relevance to the present appeal is within a short compass. The log of the fishing vessel, of which the respondent was the master, bore to state that on 30 June 1998 the vessel left Effort Zone A, and hence ICES Area VIa, at 1200 hours; and that in statistical rectangle 47/E6 within ICES Area IVa, which lies to the east of ICES Area VIa, 2,000 kgs of monkfish were caught and kept on board. However, there was evidence at 1303 hours on that date the vessel was at a particular location within ICES Area VIa. That location was approximately 26.5 nautical miles from the eastern extremity of ICES Area VIa. At that time the vessel was engaged in a fishing operation, in respect that its warps were under tension and extending from its stern and leading to the water.

The Sea Fishing (Enforcement of Community Control Measures) Order 1994, which was made under section 30(2) and (3) of the Fisheries Act 1981, makes provision by article 3 for various offences. Article 3(3), as amended, which the respondent was alleged to have contravened, provides:

The Regulations referred to in article 3(3) were made by the Council of the European Communities. The 1987 Regulation established certain control measures for fishing activities. The 1993 Regulation established a control system applicable to the common fisheries policy. Article 5.1 of the 1987 Regulation states:

In the present case the charge alleges that the respondent knowingly or recklessly furnished information which was false in material particulars, namely that the logsheet entries purported to truly record that all fishing operations on 30 June 1998 were in the ICES Area IVa. For present purposes it is of no moment that the logsheet was or may have been correct in recording that the monkfish were caught and kept on board in that area. The gravamen of the charge that it was falsely represented that all fishing operations were in that area. The Crown maintain that a false representation was made, not in regard to matters covered by what article 5 specifies as the "minimum" which should be indicated in the logbook, but in regard to details which were required by other regulations and fell within the generality of article 5.

The Crown refer in particular to the terms of Commission Regulation (EEC) 2807/83 as amended, which applied at the relevant time. Article 1 of that Regulation made provision for the form of logbooks and stated that they were to be completed in accordance with the instructions set out in Annexes IV and V to that Regulation. Annex IV stated how the logbook was to be completed (para.2.1.2); and stated that a new line should be filled in when there was fishing in a new ICES division or in another fishing zone on the same day (para.2.5). Standing those requirements, the logbook, so the Crown maintain, falsely represented that on 30 June 1998 fishing had taken place only within ICES Area IVa.

The sheriff upheld the submission that there was no case to answer upon the view that the 1983 Regulation did not fall to be read along with, or imported into, article 3(3) of the 1994 Order, and that in the absence of a measurable catch there was no room for the application of article 5 of the 1987 Regulation.

The main submission of the Advocate depute, for the appellant, was founded upon what he maintained was the functional relationship between the 1987 Council Regulation and the 1983 Commission Regulation. He drew attention to the objectives of the 1987 Regulation, as set out in its preamble. These included the monitoring by the authorities of Member States of all fishing vessels and their activities, and the keeping by skippers of a record of their fishing activities. Thus, he submitted, it was not simply a matter of monitoring of catches of fish but of monitoring what fishing operations were taking place and where. Seen in its context, article 5 of the 1987 Regulation was directed to ensuring that a logbook was kept inter alia so as to enable fishing operations to be monitored. Similar provision had been made by article 3 of Council Regulation No.2057/82 which was repealed and replaced by the 1987 Regulation.

The Advocate depute also pointed out that article 14 of the 1987 Regulation provided that detailed rules for implementing articles 3 to 10 were to be adopted. The similar provision had been made by the 1982 Regulations. Thus implementation of article 5 was achieved by the detailed provisions contained in the 1983 Regulation. Accordingly purported compliance with article 5 of the 1987 Regulation involved a purported compliance with those detailed provisions. In the result it was not fatal that those detailed provisions were not expressly referred to in article 3(3) of the 1994 Order. There was a similar relationship between the 1993 Regulation, which was the other Council Regulation mentioned in article 3(3), and the detailed provisions contained in the 1983 Regulation.

The Advocate depute went on to submit that his argument supported by inference from the terms of article 3(1) of the 1974 Order. Put shortly, it provides in its amended form that various persons are to be guilty of an offence where there is a contravention of, or failure to comply with, a Community provision specified in column 1 of the schedule to the Order. The first entry under that column, headed "Community provision," is "article 5 of Regulation 2241/87, as read with article 1 of, and Annexes I, II, IV, V, VI and VII to, Regulation 2807/83." The Advocate depute pointed out that, according to the terms of article 3(1), the master and the charterer and any other person responsible for the vessel were to be guilty of an offence "in the case of article 5 of Regulation 2241/87". It was plain, he submitted, these words were being used as shorthand for article 5 as read with the provisions of Regulation 2807/83 which were specified in the first entry of the schedule. A similar approach should be taken to the reference to "article 5 of Regulation No.2241/87" in article 3(3) of the 1994 Order.

For the respondent Mr Summers, in a reply which was admirably succinct, submitted that the critical point was that the detailed provisions of the 1983 Regulation were not referred to in article 3(3) of the 1994 Order. He contrasted the present case with that of Westwater v Thomson 1992 S.C.C.R. 624 which was concerned with the contravention of The Sea Fishing (Enforcement of Community Control Measures) Order 1985 by reason of a failure to comply with article 1.1 of, and Annexes I and IV to, the 1983 Regulation and article 5 of the 1987 Regulation. The question with which that case was concerned was whether it was compulsory for the master to record the location of catches by reference to the statistical rectangle and not merely by reference to the ICES Area. It was held that the requirement to provide information in regard to the statistical rectangle was compulsory, and that the rules in Annex IV were within the powers granted by articles 5 and 14 of the 1987 Regulation. Unlike the case of Westwater v Thomson, the present case was not concerned with the offence of contravening, or a failing to comply with, a regulation but with the separate offence of making a false representation in purported compliance with article 5 of the 1987 Regulation. In the case of article 3(3) there was no means by which a link could be made to the provisions of the 1987 Regulation which the Crown founded upon. Mr Summers also submitted that the terms of article 3(1) did not assist the Crown. He pointed out that in its original form it referred to "a Community provision specified in column 1 of the Schedule hereto, as read with any qualifying words relating thereto in the schedule". However, by an amendment made in 1996 the words "as read with any qualifying words relating thereto in the schedule" were omitted. While he recognised that no amendment had been made to the first entry in the schedule, he submitted that this change meant that it was no longer possible to bring in the provisions of the 1983 Regulation which were referred to in that entry.

Mr Summers also submitted, in support of the interpretation which the sheriff had accepted, that almost all of the provisions which were referred to in article 3(3) of the 1994 Order were concerned with catches of fish. This was true of all the matters which were referred to in article 5 in the 1987 Regulation as being a "minimum", and it was also true of most of the provisions in the 1993 Regulation to which reference was made. If the intention was that article 3(3) should be concerned with false information in regard to catches, this might explain why the words "as read with any qualifying words relating thereto in the Schedule" had been omitted. It made sense he submitted, for article 5 to be considered by itself without bringing in the detailed provisions which were made under a different regulation.

In approaching the question of the scope of article 3(3) of the 1994 Order, and hence that of article 5 of the 1987 Regulation, it is, of course, important to bear in mind, as the sheriff pointed out, that penal provisions should not be read as creating a wider scope by implication unless the implication is clear. In the present case we are not concerned with a complaint that the respondent was guilty of an offence by reason of failing to provide information. It is that he knowingly or recklessly furnished false information to the effect that all the fishing operations on a particular day were in a certain area. That is a question of fact. The issue as to the scope of the 1987 Regulation arises from the question as to what, in the light of the 1983 Regulation, the logbook conveyed.

It is to be noted that article 5 requires the skippers to keep a logbook "of their operations". It does not appear to limit what the skipper is required to record to the stated "minimum". Thus, if he records further information about his "operations" which he was otherwise required to record, he would at the same time be purporting to fulfil his duty under article 5. On any view he would, as a matter of fact, be making a statement about his operations, which, if it was false, would involve him in a contravention of article 3(3). However, the matter is clearer when one considers article 5 in its context, as we were invited to do so by the Advocate depute. It is reasonably plain that it was intended that what was to appear in the logbook would in part be spelt out in the 1987 Regulation and in part by a Commission Regulation which would give the necessary detail. We do not find any convincing support for the argument which found favour with the sheriff that article 5 should be construed as dealing exclusively with the information about catches of fish. We note, for example, that article 19b of the 1993 Regulation, as amended by Council Regulation 2870/95, deals with various types of information which masters of Community vessels are to provide.

In these circumstances we consider that the Advocate depute's main submission is well-founded. We do not find it necessary to go on to consider what support for the end result of his submissions can be found by reference to the terms of article 3(1) of the 1994 Order.

We will accordingly allow the appeal, answer the question in the stated case in the negative, and remit to the sheriff to proceed with the summary trial as accords.