Scottish High Court of Justiciary Decisons

ADELINO ENRIQUEZ v. PROCURATOR FISCAL, LERWICK [2001] ScotHC 51 (12th July, 2001)

[1] The appellant, who has an address in La Coruna, Spain, was charged on a summary complaint at Lerwick Sheriff Court in the following terms:

The appellant, in answer to the complaint, entered a plea to its competency based on "geographical jurisdiction". A debate on this plea was fixed for 26 July 2000. On that day, fog prevented counsel for the appellant from appearing in Lerwick Sheriff Court. Accordingly the matter was continued to the next day, 27 July 2000, when the debate took place. The case was then continued for the sheriff to issue his decision until 17 August 2000. On that date, the sheriff repelled the appellant's plea to the competency of the complaint, granted leave to appeal and adjourned the case for trial until 22 March 2001. The sheriff's narrative of the submissions made to him and the reasons for his decision are contained in his Note, to which we refer. Thereafter, the appellant lodged a Note of Appeal under section 174(1) of the Criminal Procedure (Scotland) Act 1995 on 21 August 2000, which contains the appellant's grounds of appeal.

[2] When the appeal came before us on 12 July 2001, counsel for the appellant indicated that ground of appeal (3)(b)(iv) was not to be argued. Thereafter, he presented the appeal, dealing firstly with the nature of the complaint, secondly with the relevant legislation and thirdly with the submissions made against the sheriff's decision. Dealing with the complaint, counsel for the appellant pointed out that the appellant was charged as the master of a fishing vessel registered in the United Kingdom at Falmouth. The offence alleged was a contravention of Article 3(1) of the Sea Fishing (Enforcement of Community Control)(Scotland) Order 2000 (S.S.I. 2000 No. 7) hereinafter referred to as "the Control Order", and section 30(2) of the Fisheries Act 1981. The period within which the alleged offence was said to have been committed was between 15 May 2000 and 25 May 2000. The locus of the alleged offence was defined in the complaint by certain co-ordinates, the position concerned being to the north-west of Shetland. It was a matter of agreement that the word "elsewhere" in the complaint was not of significance in the present context. It was also a matter of agreement that the locus of the alleged offence was outwith the 12 mile limit of territorial waters surrounding Scotland, but within the 200 mile fisheries limit which the Crown contended had been established around Scotland. It could be seen from the complaint that the allegation against the appellant was of under and over recording of fish catches in breach of the two sets of European Regulations there specified. In the present appeal, nothing depended upon the precise nature of those allegations.

[3] Counsel for the appellant next drew our attention to the legislative provisions which he submitted were relevant to the appeal. The offence alleged was created by section 30(2) of the Fisheries Act 1981 and Article 3(1) of the Control Order. By virtue of sub-paragraphs (b) and (c) of Article 3(1) that article was potentially applicable to the fishing boat of which the appellant was the master. Both of those parts of that article referred to "the Scottish zone". Article 2(1) of the Control Order provided that:

Section 126(1) of the Scotland Act 1998 provided that

The Fishery Limits Act 1976, by section 1 thereof, established British fishery limits. Section 1(1) of that Act provided:

Counsel for the appellant submitted that there was a fundamental lack of clarity in the definition of "the Scottish zone" enacted in section 126(1) of the Scotland Act 1998, and, in particular, in the words "adjacent to Scotland". These words were to be compared with the words "adjacent to the United Kingdom", found in section 1(1) of the Fishery Limits Act 1976.

[4] However, explained counsel for the appellant, the matter did not end there. In section 126(2) of the Scotland Act 1998, it was provided that:

In this connection it was necessary to notice the provisions of section 1(1) of the Territorial Sea Act 1987. It provided:

In order to understand the full statutory background, it was necessary to see how the power conferred by section 126(2) of the Scotland Act 1998 had been exercised. That had been done in the Scottish Adjacent Waters Boundaries Order 1999 (S.I. 1999 No. 1126), hereinafter referred to as "the Boundaries Order". Article 3 of the Boundaries Order defined the boundaries between waters which were to be treated as internal waters or territorial sea of the United Kingdom adjacent to Scotland and those which were not, by reference to certain specified lines joining certain specified co-ordinates. Article 4 of the Boundaries Order defined the boundaries between waters which were to be treated as sea within British fishery limits adjacent to Scotland and those which were not, by reference to certain specified lines and co-ordinates. It was apparent from the Boundaries Order itself and the map associated with it that the boundary created by the Order was not comprehensive.

[5] Against the foregoing background of statutory provision, counsel for the appellant submitted that there was a fundamental lack of clarity as regards "British fishery limits adjacent to Scotland and those which are not." This submission was made in the full knowledge of the provisions of the Boundaries Order. That Order was itself fatally flawed, because it did not make clear that "the Scottish zone" lay to the north of the lines and co-ordinates utilised in it to define "the boundaries between waters which are to be treated as sea within British fishery limits adjacent to Scotland and those which are not". Furthermore, a problem arose from the language used in Article 1(2) of the Control Order. It provided that: "This Order extends to Scotland only." That had to be read along with section 126(1) of the Scotland Act 1998, which contained a definition of "Scotland". It provided that "'Scotland' includes so much of the internal waters and territorial sea of the United Kingdom as are adjacent to Scotland". The submission of the appellant was that the Control Order was defective because it did not make precise provisions as to its geographic application in respect that it relied upon the terms of section 126(1) of the Scotland Act 1998. There was a lack of the necessary precision required for the creation of a criminal offence. There ought to have been enacted a further Order in Council making it clear that "the Scottish zone" within British fishery limits lay to the north of the boundaries defined in the Boundaries Order between "waters which are to be treated as sea within British fishery limits adjacent to Scotland and those which are not". Counsel for the appellant, for these reasons, moved us to allow the appeal.

[6] The Solicitor General, on behalf of the Crown submitted that the arguments of the appellant relating to the Control Order were unsound. Article 3(1) of that Order created certain offences in relation to "the Scottish zone". Article 2(1) of the Control Order defined that expression by reference to the definition given in section 126(1) of the Scotland Act 1998. In that latter enactment, there was an acceptance for the purposes of the definition of "the Scottish zone" of "British fishery limits" set by or under section 1(1) of the Fishery Limits Act 1976. If the appellant's argument were sound, it would apply to that definition of "British fishery limits", which made use of the expression "adjacent to the United Kingdom...". That was a very remarkable suggestion. The position was that the Control Order was quite clear in its terms. It utilised the definition contained in section 126(1) of the Scotland Act 1998 of the Scotland Act 1998 . There was nothing ambiguous or obscure about the words "adjacent to Scotland" which formed part of that definition. It was, of course, true that the Control Order, in Article 1(2) provided that "This Order extends to Scotland only." The definition of "Scotland" contained in section 126(1) of the Scotland Act 1998 was not expressly imported into the Control Order. In any event, it was plain that Article 1(2) of the Control Order, which was arguably unnecessary, constituted a reference simply to the Scottish jurisdiction and legal system. Article 1(2) could not affect the clear provisions of Article 3(1) of the same Order. It was interesting to note that, in Article 3(1), in sub-paragraphs (b) and (c) reference was made to "the Scottish zone", whereas in sub-paragraph (d) reference was made to fishery products, premises or vehicles in "Scotland". It was obvious that the expression "the Scottish zone" was to be distinguished from the word "Scotland". The same important distinction was to be found in Article 8(1)(a) of the Control Order, which provided that

certain items of property there specified. It was plain that the appellant's attack on the sheriff's decision was unsound and should fail. The agreed locus of the alleged offence was within the area of sea which would be included within "the Scottish zone", if the Crown's contentions were correct. Thus the offence created by Article 3(1) of the Control Order could be committed there. The appeal should be refused.

[7] The complaint which the appellant faces contains an allegation of an offence under Article 3(1) of the Control Order in relation to certain European Regulations there specified, the details of which are immaterial for the purposes of the present appeal, in respect of a fishing boat registered at Falmouth, which falls within the category of "(b) any other fishing boat within the Scottish zone". Article 2(1) of the Control Order provides that the expression "Scottish zone" is to have the same meaning as in section 126(1) of the Scotland Act 1998. In that enactment, it is provided that

Section 126(2) of the Scotland Act 1998 creates machinery for inter alia the determination, for the purposes of the Act, of any boundary between

The machinery is determination by Order in Council. It was in the exercise of this power that the Boundaries Order was made. In terms of Article 4 of that Order, the boundaries between waters which are to be treated as sea within the British fishery limits adjacent to Scotland and those which are not are defined by reference to certain lines and co-ordinates specified in the Order and in Schedule 2 to it.

[8] The first argument advanced on behalf of the appellant was to the effect that, because there was nothing in the Boundaries Order, or any other Order which indicated that waters "adjacent to Scotland" were those to the north of the boundaries specified in the Boundaries Order, there was a fatal ambiguity in the statutory provisions. In our opinion, that argument is plainly unsound. Having regard to the undoubted facts of the geography of Great Britain, of which this court has judicial knowledge, it is quite clear that the territory of Scotland lies to the north of the territory of England. Accordingly, in our view, waters "adjacent to Scotland" must be those lying to the north of the boundaries defined by Article 4 of the Boundaries Order. We are at a loss to understand how it could be suggested that such waters could lie anywhere else. In particular, if they lay to the south of the defined boundaries, they would be adjacent to England or, it might be, some other part of the United Kingdom, rather than to Scotland.

[9] It was also argued on behalf of the appellant that the terms of Article 1(2) of the Control Order injected an element of fatal ambiguity into the area of the geographical application of that Order. That part of that Article provides that "This Order extends to Scotland only". In our opinion, the terms of Article 1(2) do not, in any way, detract from the clear subsequent provisions of the Order, to which we have already referred. Article 3(1), under which the present complaint has been brought, refers to "(b) any other fishing boat within the Scottish zone", which zone is defined as has already been explained. In our opinion, there is no room for confusion between the "Scottish zone" and "Scotland", the word used in Article 1(2). In the Control Order, the word "Scotland" is not specifically defined but, in our view, it must plainly bear a meaning different from the "Scottish zone", as appears from Article 3(1)(b) and (c), where the latter expression is used, and (d) where the former word is used; also from the provisions of Article 8(1)(a), where both expressions are used in contradistinction. Although we express no concluded view on the matter, it appears to us that the word "Scotland" in Articles 3(1)(d) and 8(1)(a) is a reference simply to the territory of Scotland in which, for example, "fishery products, premises or vehicles", referred to in Article 3(1)(d), may be found. We consider that the reference to "Scotland" in Article 1(2) of the Control Order is simply an arguably unnecessary reference to the Scottish legal system, in which alone cognisance is to be taken of the Control Order.

[10] For all these reasons, we consider that the legislation under which the present complaint has been brought does not contain the ambiguities and uncertainties contended for by the appellant. We shall therefore refuse the appeal and remit the case to the sheriff to proceed as accords.