Scottish High Court of Justiciary Decisons

GEORGE ROBERTSON WEST v. PROCURATOR FISCAL, BANFF [2000] ScotHC 103 (2nd November, 2000)

[1] The appellant was convicted after trial of the following charge:

[2] The background to the matter is the common fisheries policy of the European Union as ultimately established by Council Regulation (EEC) No. 3760/92. The establishment of a control system applicable to that policy was effected by Council Regulation (EEC) No. 2847/93. The system has been amended since that date, but that was the Regulation which was in force at the time that the offence in this case was allegedly committed, that is to say, 12 August 1997.

[3] The United Kingdom relevant legislation implementing the policy is initially the Sea Fish (Conservation) Act 1967 and the Sea Fish Licensing Order 1992 (S.I. 2633/92) and the Sea Fishing (Licences and Notices) Regulations 1994 (S.I. 2813/94).

[4] As can be found from the findings in fact in the stated case, the position is that the waters surrounding the United Kingdom have been divided into certain areas under an international division known as ICES. Defence production No. 1, on page 74 of the print, demonstrates those divisions which include an area of the North Sea known as IVa ("NSA") and an area off the west coast of Scotland VIa ("WCA"). The dividing line between those two areas is longitude 4° west, which is a line to the west of Shetland, almost bisecting the northern coast of Scotland ("the meridian line").

[5] At the material time the licensing system in force enabled the Minister to issue licences to fish which, on the face of them, amounted to an almost blanket ban as to the species of fish that may be caught in the relevant areas. But, as can be seen on page 61 of the print, the Minister could issue what were known as Notices of Variation, particularly in relation to herring with which this case is concerned, which permitted fishing for that species of fish (up to the quota of the owner of the licence) in a particular area or areas designated under the international orders. At the material time, accordingly, to be permitted lawfully to fish in either NSA or WCA the owner of a vessel required to be in possession of the relevant Notice of Variation in relation to that area. In addition the case discloses that Variation Notices for NSA could only be obtained at certain specified ports on the east coast of the United Kingdom and equally as far as WCA is concerned only at designated ports on the west coast of the United Kingdom. It was common ground that the effect of this requirement was that a vessel leaving an east coast port with a Variation Notice to fish in the NSA could do so within its quota, but once it crossed the line between NSA and WCA it was required to proceed to a designated port in WCA to obtain the necessary Variation Notice to fish in that area even if its quota was not exhausted. In effect, therefore, a vessel leaving NSA had to stop fishing immediately and could only recommence fishing in WCA once it had obtained the relevant authority which meant in effect that it had embarked upon another voyage from a different port.

[6] As will be observed from the stated case, before the sheriff the only issue that was argued was that of proportionality upon the basis that what was being required of the fishing vessels leaving one area to go to the other, amounted to undue interference with their basic rights to fish which was out of all proportion to the specified aim of the legislation, which was conservation of stocks.

[7] It has to be recorded that upon the findings in fact the appellant's vessel was sighted fishing for herring east of the meridian line between the two areas, not being in possession of the necessary authority to fish within NSA. However, it was represented to us that the real problem arose from the fact that a substantial proportion of the herring caught immediately to the west of the meridian line in WCA came from NSA and were thus, in accordance with the required reporting restrictions, being classified as west coast herring when they were in fact North Sea herring, which distorted the figures.

[8] In this respect the crucial finding is as follows:

[9] Mr. Stewart, Q.C. who appeared for the appellant stated three propositions before us as follows

[10] (1) The authorisations created respectively in relation to WCA and NSA were not, contrary to the position of the sheriff, reciprocally revoking in the sense that as soon as one was obtained for one area any authorisation extant in relation to the other area was automatically revoked by the granting of the new variation.

[11] (2) The scheme, as put in force by the Minister, particularly with regard to the inability to cross the meridian line and to keep fishing had been imposed for an ulterior purpose and was beyond the powers conferred by the 1967 Act in relation to the making of regulations. Alternatively, the extra-statutory restriction designed to make the taking of herring more difficult, was ultra vires because it represented a policy beyond the scope of the enabling Act.

[12] (3) The 1997 NSA and WCA herring fishing restrictions were ultra vires because they constituted monitoring of fishing activity other than for the purpose of ensuring compliance with rules "concerning conservation and control measures". In any event, the restriction amounted, it was said, to undue interference with normal fishing activities contrary to Article 4 of Council Regulation (EEC) No.2847/93.

[13] Before dealing in detail with the submissions and the Crown's response it has to be immediately noted that the first submission supra is not reflected anywhere in the stated case before the sheriff. The validity of any possible authority that the appellant might have had to fish in NSA was not in issue. Since this is a ground of appeal not foreshadowed by the case it can only be considered by us if we consider it appropriate to grant leave so to do. In the present circumstances we do not consider that to be the case and, accordingly, we will not entertain this submission.

[14] Counsel's second submission focused on section 4 of the Sea Fish (Conservation) Act 1967, as amended, and in particular subsections (5) and (6) which are in the following terms:

So far as we understand the submission it was to the effect that the powers given to the Minister in those particular subsections did not extend to the requirement in fact being imposed in the present case by reference to the effective prohibition of fishing in both the relevant areas on a single voyage.

[15] The response by the advocate depute to this submission was clear and unequivocal to the effect that the terms of the two relevant subsections were so wide that they entitled the Minister to regulate fishing in any area and to permit fishing in one or other of the two areas, but not both, during any one particular voyage.

[16] With this contention we are in complete agreement. It is perfectly apparent to us that in terms of subsection (5) the Minister may regulate not only the area where fishing is authorised, but also the extent to which a vessel on a particular voyage may fish in a particular area, and the power to impose conditions under subsection 6 was entirely general. Accordingly, the Minister, in our opinion, may achieve a result in terms of the way he handles the authorisations which entirely coincides with what was applying at the particular time, namely a ban on continuing to fish to the west of the meridian line, having been previously fishing on an authorisation to the east, without going first to a west coast port to obtain the necessary authorisation and thus completing the relevant voyage. We consider that this scheme, which is plainly restrictive, is wholly within the powers conferred generally by the relevant section and that the argument on behalf of the appellant therefore fails.

[17] That leaves for consideration the main argument on behalf of the appellant which was focused by the sheriff under the notion of proportionality, but was rather advanced before us by Mr. Stewart in relation to Articles 2 and 4 of Regulation 2847/93.

[18] Article 2(1) is in the following terms:

[19] Article 4(1) is in the following terms:

[20] Counsel focused on the phrase "undue interference with normal fishing activities" and submitted that if the results of the scheme administered by the Minister amounted to undue interference with normal fishing activity then the scheme was ultra vires. In particular, it was submitted that in terms of Article 2 the scheme in force had to be related to the rules concerning conservation and control measures. The gravamen of counsel's submission was that as found as a fact by the sheriff the scheme that led to the conviction of the appellant was purely for statistical purposes and not therefore necessary or in implement of the rules relating to conservation and control. Whether it was looked at as being out of all proportion to what was required to pursue the aim of the rules or simply upon the basis that there was no rule at all in relation to the compiling of statistics was immaterial. Either way, it was submitted, the scheme was disproportionate to the aim of the Regulations and rules and should therefore not be in force. The principle of proportionality had been considered by the European Court in this context in Wither v. Cowie 1994 S.L.T. 363 which, in any event, it was submitted had been overtaken by events, having regard to the fact that the 1993 Regulations now included a reference to undue interference.

[21] The advocate depute in reply did not dispute that the issue of proportionality or undue interference was a relevant one but he submitted that in the present case the relevant test was satisfied. Reference was made to the work on judicial review by Lord Clyde and Professor Edwards at pages 165-6 and 580-1 and we were referred by him to two cases of the European Court namely The Queen v. The Minister of Agriculture Fisheries and Food ex parte Fedesa E.C.J. 331/88 and Affish BV v. Rijksdienst voor de keuring van Vee en Vlees E.C.J. 183/95. The advocate depute submitted that the real aim of the scheme, in the sense of the prohibition of fishing in both areas on the same voyage, was to protect the stock of what were in fact North Sea herring which penetrated the WCA in the triangle to the west of the meridian line bounded by the Continental Shelf, an area, it was submitted, of some 7,000 square miles.

[22] Mr. Stewart in reply to this proposition submitted that the findings in fact did not support that particular purpose, being limited to a statistical exercise. This was obvious from findings in fact 10 and 12. He thus reiterated that there was no rule in terms of Article 2 of the 1993 Regulation which the scheme was designed to enforce or protect. Given the finding in fact (19) that prior to the introduction of the scheme vessels regularly and normally crossed the meridian line on the same voyage, the scheme amounted to an unwarranted and undue interference with normal fishing activities and offended both Article 4 of the 1993 Regulations and also the principle of proportionality.

[23] We reject the appellant's contention.

[24] In our opinion it is misleading to categorise the purpose of the scheme as being simply statistical. The facts in the case make it perfectly clear that the fundamental conservation aim is sought to be achieved by the relevant authority under a quota system restricted to or relating to the particular areas. That quota system is reviewed annually. Such a review could not be realistically undertaken unless there are clear records of the fish taken from the respective areas and if the result of fishing west of the meridian line is to effectively record the catching of what are, on the findings, North Sea herring as west coast herring there emerges a statistical distortion which may well affect the quota review. We therefore consider that the scheme that was in force at the time, which we understand has now been altered, whereby a single voyage could not encompass fishing in both areas and which was designed therefore to stop pursuit of North Sea herring across the meridian line, was in accordance with and related to the basic aims of conservation to be found in the Rules which are envisaged in Article 2 of the 1993 Regulations. The critical finding, in our opinion, is the fact that indigenous herring in WCA are largely to be found well to the south of the triangle with which this case is concerned.

[25] As submitted by the advocate depute we agree with the proposition that the scheme is much less restrictive than other remedies that could have been effected, namely reduction of quotas, which would have affected everybody fishing in WCA, or a total ban in the area in question, both of which would have been competent steps for the Minister to take and would have had a much more drastic effect, possibly amounting to undue interference.

[26] This simply confirms our conclusion that the scheme was lawfully within the powers conferred on the Minister and does not offend the principle of proportionality.

[27] In these circumstances we will answer question 1 in the negative and question 2 in the affirmative.