Scottish High Court of Justiciary Decisons

Procurator Fiscal v. Sinclair [2002] ScotHC 81 (28 June 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Marnoch Lord Caplan	Appeal No: 206/02 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in NOTE OF APPEAL by PROCURATOR FISCAL, Lerwick Appellant; against JAMES ROBERT SINCLAIR Respondent: _______

 

 

Appellant: Lord Advocate; Crown Agent

Respondent: P. Wheatley, solicitor advocate; Keegan Smith

28 June 2002

1. The respondent was charged on summary complaint in the Sheriff Court at Lerwick with a contravention of section 3 of the Sea Fish (Conservation) Act 1967, as amended. In the complaint it was alleged that he was the master and owner of a certain Scottish fishing boat, in respect of which there was on 26 September 2000 at a certain position in the North Sea a contravention and failure to comply with Article 4 of the Sea Fish (Specified Sea Areas)(Regulation of Nets and Other Fishing Gear) (Scotland) Order 2000 ("the Scottish Order") "in that the net used by the said vessel on the said date, being a net with a mesh size of 70 millimetres or more but not less than 119 millimetres had no square mesh panel incorporated as part of the net".
2. Article 4 of the Scottish Order, which came into force on 3 August 2000, states:

"Any net to which this article applies which has a mesh size of 70 millimetres or more but less than 119 millimetres shall have incorporated in it as part of the net a square mesh panel which -

(a) has a mesh size of not less than 90 millimetres; and

(b) is no more than 12 metres from the codline or, in any case where the

net is used for the purpose of fishing for Norway lobsters, no more than 18 metres from the codline".

It is not in dispute that Article 4, according to its terms, applied to the net allegedly used by the fishing boat.

3. In the Sheriff Court the respondent challenged the competence of Article 4 on the ground that it was not in conformity with Council Regulation (EC) No. 850/98 of 30 March 1998 "for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms" ("the Council Regulation").
4. In the event the sheriff decided to refer to the European Court of Justice for a preliminary ruling a number of questions which he regarded as arising from the discussion before him. The appellant appealed, with leave of the sheriff, against that decision. In this court parties were in agreement that the question of competency should, if possible, be resolved by this court.
5. The first question on which the sheriff proposed to obtain a ruling was whether the terms of the Scottish Order were "compatible and in sufficient conformity with the minimum requirements" with the Council Regulation.
6. Article 7.1(a) of the Council Regulation states that "square-meshed panels of a mesh size of at least 80 millimetres may be inserted into any towed net". Article 7.2 makes various provisions in regard to the placing, dimensions and construction of square-meshed panels. Paragraph 2(a) states in particular that such a panel "shall be placed in the top half or top sheet of a net in front of any extension piece or at any point between the front of any extension piece and the posterior of the cod-end".
7. Article 7.4 states:

"Notwithstanding paragraphs 1(a) and 2(a), any demersal trawl, Danish seine or similar towed net of which the mesh size lies in the range 70 to 79 millimetres shall be equipped with a square-meshed panel positioned anterior to the cod-end and having a mesh size equal to, or greater than, 80 millimetres".

8. For the respondent Mr. Wheatley submitted that Article 7.1 of the Council Regulation, which had direct effect in Member States, gave the boat owner a "right" to chose whether or not to have a square-meshed panel inserted into a towed net. In other words he had "permission" to dispense with such a panel. Mr. Wheatley accepted that, where an owner chose to have such a panel inserted, it required, according to the terms of the paragraph, to have a mesh size of at least 80 millimetres.
9. Mr. Wheatley also accepted that, according to the terms of Article 46(1) of the Council Regulation, as replaced by Article 1.3 of the Council Regulation (EC) No. 1298/2000, Member States might take measures for the conservation and management of stocks

"...

(b) in the form of conditions or detailed arrangements designed to limit

catches by technical measures:

(i) supplementing those laid down in the Community legislation

on fisheries; or

(ii) going beyond the minimum requirements laid down in the said

legislation; ..."

However, Mr. Wheatley submitted, Article 4 of the Scottish Order was expressed in such a way that it cut down the "right" or "permission" enjoyed by the boat owner under Article 7.1(a) of the Council Regulation, in particular by requiring boats to have a square-meshed panel in a wider range of nets, by reference to their mesh size. Article 4 of the Scottish Order was clearly not in conformity with Article 7.1(a) of the Council Regulation, and hence was not competent.

10. In our opinion that submission is clearly ill-founded. It was open to a Member State, in accordance with Article 46.1 of the Council Regulation as amended, to go beyond the minimum requirement laid down by Article 7.4 as to the nets to which (by reference to their mesh sizes) measures for the conservation and management of stocks, and in particular a requirement for the insertion of a square-meshed panel, should apply. We do not accept that Article 7.1(a) created some "right" or "permission". That provision appears to be directed to ensuring that there is a minimum size of mesh in the case of any square-meshed panel. However, even if Article 7.1 should be understood as giving some form of freedom to owners as to whether or not their nets should incorporate a square-meshed panel, it must, on a proper construction of Article 7, be subject to being affected by an increase in the requirements laid down by Article 7.4. It is plainly necessary that the article should be read as a whole. This is underlined by the fact that the opening words of Article 7.4 show expressly that there is a relationship between that paragraph and paragraphs 1(a) and 2(a).
11. For these reasons we consider that the provisions of Article 4 of the Scottish Order do not give rise to any question of incompatibility or lack of conformity with the Council Regulation and that in these circumstances the first question posed by the sheriff does not arise.
12. We should add that in any event we would have declined to regard that question as one which could competently be referred to the European Court of Justice. As the Lord Advocate pointed out, it does not raise an issue which can be submitted in terms of Article 234 (formerly Article 177) of the Treaty Establishing the European Community. That article provides that the European Court of Justice is to have jurisdiction to give preliminary rulings concerning:

"(a) the interpretation of this Treaty;

(b) the validity and interpretation of acts of the institutions of the

Community and of the ECB (the European Central Bank);

(c) the interpretation of the statutes of bodies established by an act of the

Council, where those statutes so provide".

13. The second question posed by the sheriff was:

"Is it necessary for all devolved jurisdictions of a Member State to conform simultaneously with EC legislation so that all citizens of that State are equally affected?".

Before the sheriff it was maintained that Article 4 of the Scottish Order was not sanctioned by Article 46(1) of the Council Regulation, as amended, in respect that the Scottish Order was restricted in its application to fishing boats registered in Scotland and to fishing boats registered in England when they were in the Scottish zone. It was pointed out that the corresponding Order relating to England and Northern Ireland did not come into operation until after the date of the alleged offence. In these circumstances it was maintained that there was a discrimination against Scottish fishermen. This was offensive to the Treaty obligations of the United Kingdom. However, Mr. Wheatley stated to this court that he did not seek to renew this argument. In the circumstances we do not require to deal with it or with the second question.

14. The third question posed by the sheriff was:

"Where community and national regimes differ is there an element of choice for the citizen as to which regime he should follow?".

This question reflects an argument presented to the sheriff by the respondent that there was a question as to which legislation fell to be obeyed. It was contended that where there was "an obvious conflict" the Council Regulation must take precedence over the provisions of the Scottish Order. As Mr. Wheatley conceded, this question does not raise any separate issue from that covered by the first question. As we have already stated, the question of conflict between the two sets of provisions does not arise. Both apply in Scotland, with the difference that the Scottish Order, which goes further than the Council Regulation, forms the basis for the charging of a criminal offence for its enforcement. Having regard to what we have said above, there is plainly no need for this question to be referred to the European Court of Justice.

15. The fourth and fifth questions posed by the sheriff were:

"If a citizen has been given a right of choice of action under EC legislation is it appropriate for him to be deprived of that right?" and "Is the Scottish regime as applied by the said Nets Order valid in terms of the EC legislation which it purports to implement?".

Each of these questions is covered by what we have already said.

16. We should add that in the note which he provided for this court the sheriff stated four questions for this court. The first question does not now arise. We answer the second and third questions in the affirmative and the fourth question in the negative.
17. In these circumstances we shall allow the appeal against the decision of the sheriff with reference to the European Court of Justice. We were assured by Mr. Wheatley that no other point of competency still had to be resolved. We will remit the case to the Sheriff Court for the sheriff to proceed as accords, with a direction, under reference to the terms of this Opinion, to repel the plea to competency.