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Cite as: [2004] ScotHC 33

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Matthew v. Procurator Fiscal [2004] ScotHC 33 (02 June 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Marnoch

Lord Hamilton

Sir G H Gordon, QC

XJ258/03

OPINION OF THE COURT

delivered by

THE RIGHT HONOURABLE LORD HAMILTON

NOTE OF APPEAL TO THE COMPETENCY AND RELEVANCY

ALISTAIR MATTHEW

Appellant

against

PROCURATOR FISCAL, WICK

Respondent

_____________

Act: Summers; Walter Gerrard & Co

Alt: Bain, Crown Agent

2 June 2004

[1] On 17 December 2001 there was issued to the appellant a licence, purportedly granted under the Sea Fish (Conservation) Act 1967 (as amended) by an officer on behalf of the Scottish Ministers, in respect of the vessel "Seagull". That licence bore to be subject to a number of conditions, including condition 10, (headed "Landing Requirements for All Stocks"). Condition 10.2 identified among other things the ports in the United Kingdom at which sea fish might be landed. Included among these ports was Scrabster. Condition 10.3 reads:

"Prior to commencing landing of sea fish in accordance with paragraph 10.2 above, the first (pink) copy of the EC Logsheet(s) relating to the sea fish, which must contain the same information as the original (white) EC Logsheet(s), shall be deposited in the box marked for this purpose and located in the port of landing, as specified in column 4 of the table above, unless the original (white) EC Logsheet(s) have either:

(a) been handed to a British sea-fishery officer;

(b) been deposited in place of the first (pink) copy in that box,

in compliance with Commission Regulation (EEC) No. 2807/83".

The location at Scrabster of the marked post-box was identified in condition 10.2 as "On the outside front wall of Scrabster fishmarket".

[2] In April 2002 there was served on the appellant, at the instance of the Procurator Fiscal at Wick, a complaint which, as amended, charged him in the following terms:

"on 28 January 2002 at Scrabster Harbour, Scrabster you Alistair Matthew, being the Master of the Seagull registered at Banff as BF 74, a vessel in respect of which you hold a licence under Section 4 of the aftermentioned Act, did fail to comply with a condition of the aforementioned licence at paragraph 10 in that no copy of any logsheet for said fishing vessel was deposited in the box marked for that purpose prior to commencing landing of sea fish; CONTRARY to Section 4(6) of the Sea Fish (Conservation) Act 1967 as amended."

Section 4(6) of the 1967 Act as amended provides that a licence issued under Section 4 may authorise fishing either unconditionally or conditionally (including subject to conditions as to the landing of fish). It further provides that if a licence condition is broken, the master of the vessel (among possibly others) is guilty of an offence under that subsection. Such a person is, on conviction, liable to a fine.

[3] The appellant lodged a devolution minute in which, on certain grounds, he contended that the licence, and in particular condition 10.3 thereof, was incompatible with, first, the appellant's rights under the European Convention of Human Rights and Fundamental Freedoms and, secondly, Community law and that accordingly the Lord Advocate's act in prosecuting him for breach of that condition was ultra vires under Section 57(2) of the Scotland Act 1998. The sheriff refused the devolution minute and repelled the appellant's associated plea to the relevancy of the complaint. The appellant now, with leave, appeals against that determination to this court.

[4] In support of the appeal Mr Summers, on the appellant's behalf, advanced two principal submissions - first, that the licence issued, and in particular condition 10.3, lacked the accuracy or precision necessary in terms of Article 7 of the Convention, as interpreted, to found a criminal offence and, secondly, that condition 10.3 had no foundation in and was inconsistent with Community law.

[5] In developing the first of the these submissions Mr Summers emphasised that condition 10.3 referred in terms to Commission Regulation (EEC) No. 2807/83 and to compliance with that Regulation. But that Regulation, he argued, made provision in respect of the transmission of a vessel's logsheets or logbook which was inconsistent with condition 10.3. In particular, para 4.2.1 of Annex IV to that Regulation provided, under the heading "Procedure for transmission" - "In the case of landings in the port of the Member State whose flag the vessel is flying or in which it is registered, the original(s) of the log-book and of the landing declaration shall be handed over or despatched to the authorities of the Member State in question within 48 hours of completion of landing." The Regulation thus allowed a latitude of up to 48 hours from completion of landing for the transmission of the relative documentation. The condition on the other hand envisaged that to secure compliance with the Regulation, the relevant transmission would require to have been made prior to commencing landing of the fish. It did not matter to the submission whether one read the final phrase in condition 10.3 "in compliance with Commission Regulation (EEC) No. 2807/83" as applying to the whole of condition 10.3 or only to the final subordinate clause.

[6] We reject this submission. We are satisfied, in the first place, that on a plain reading the final phrase applies to the final subordinate clause and not to the subcondition as a whole. We are also satisfied that the wording of condition 10.3 is sufficiently clear to leave no real doubt as to its meaning and intent. The principal clause imposes a condition that, prior to commencing landing of sea fish, the first (pink) copy of the EEC logsheets be deposited in the specified box. The subordinate clause provides that that requirement will not apply if the original (white) EEC logsheets have either been handed to a British sea-fishery officer or been deposited in the specified box in place of the pink copy. [The disjunctive "or" appears to be missing from the text but the meaning is clear]. We accept that the word "have" imports that these alternative steps have likewise been taken prior to the landing of the fish. However, the taking of these steps at that time is consistent with and would be in compliance with Commission Regulation No. 2807/83, albeit that that Regulation itself allows for a greater temporal latitude for the transmission of the original documents. The alternative modes of transmission provided for in the subordinate clause of the subcondition are also consistent with and reflect the alternative modes of transmission ("handed over or despatched to the authorities of the Member State") provided for in paragraph 4.2.1 of Annex IV to the Regulation. Accordingly, there is no incompatibility with the requirement of certainty laid down by Article 7 of the Convention, as interpreted. The appellant could readily know from the wording of the relevant provision what act or omission would make him criminally liable.

[7] The second proposition raises an issue of Community law. Mr Summers submitted that competence in relation to the relevant fishing matters was vested exclusively in the European Union. As regards the transmission of the logbook or logsheets, the only European provision in point was Commission Regulation (EEC) No. 2807/83. Although that Regulation had subsequently been amended, none of the amendments was significant for present purposes. It remained at the relevant time in force and was, in accordance with its terms, "binding in its entirety and directly applicable in all Member States". The only relevant provision which it made in respect of procedure for transmission of logbooks was that contained in paragraph 4.2.1 of Annex IV. The Regulation did not authorise Member States to make any stricter requirements such as that contained in condition 10.3 of the licence. It was irrelevant to rely, as the Crown had done, on other Regulations such as Council Regulation EEC No. 2847/93 (as amended by Council Regulation EEC No. 2846/98). These dealt with other matters. It was accordingly irrelevant that Article 38 of Council Regulation No. 2847/93 envisaged that in certain circumstances national control measures might go beyond the minimum requirements of that Regulation. The imposition of condition 10.3 was accordingly inconsistent with Community law and any prosecution alleging a breach of that condition was ultra vires the Lord Advocate.

[8] As the Advocate depute pointed out in her reply on this aspect, Council Regulation No. 2847/93, which describes itself as "establishing a control system applicable to the common fisheries policy", sets out in its preamble a number of policy objectives. These include , (1), "Whereas the success of the common fisheries policy involves implementing an effective system of control covering all aspects of the policy"; (2) "Whereas it is essential to clarify and confirm at the time of landing the information contained in the logbooks; whereas, to this end, it is necessary that those involved in the landing and marketing of catches should declare the quantities landed, transhipped, offered for sale of purchased" (sic); and (3) "Whereas this Regulation should not affect the national provisions on monitoring, which, while coming within its scope, go beyond its minimum provisions, provided however that such national provisions are in conformity with Community law". Article 2 of that Regulation (as substituted) imposes obligations on Member States in relation to monitoring, inspection and maintenance of surveillance of all activities in the fisheries sector, including that of landing of fisheries products.

Article 4 provides:

"1. The inspection and monitoring specified in Article 2 shall be carried out by each Member State on its own account by means of a system of inspection decided by the Member State."

Article 38 provides:

"This Regulation shall apply without prejudice to any national control measures which go beyond its minimum requirements, provided that they comply with Community law and are in conformity with the common fisheries policy".

This Article provides also for the communication to the Commission of such national measures but no point was taken before us in respect of any failure of such communication. The Advocate depute further contended that, even in the absence of Article 38, the relevant authorities in the United Kingdom had power to make stricter requirements, provided these were consistent with the common fisheries policy.

[9] It is unnecessary for the purposes of this case to decide whether the authorities in the United Kingdom could, in the absence of Article 38 or some like provision, have taken the stricter national measure in respect of monitoring and inspection reflected in condition 10.3 of the licence issued to the appellant. We reserve our opinion on that matter. We are, however, satisfied that Council Regulation No. 2847/93, as amended, is sufficiently wide in its scope to embrace monitoring and control of the landing of fisheries products, including the completion and transmission of documentation at a time and in a manner to ensure compliance with the common fisheries policy. While that Regulation does not deal expressly with logsheets, it makes provision (Article 8) for the parallel documentation of landing declarations. Commission Regulation No. 2807/83, which may be primarily concerned with the recording of information but which is also concerned with control measures for fishing activities, makes certain detailed provision with respect to both logbooks and landing declarations, but such provision is not, in our view, necessarily exhaustive. As permitted by Article 38, Member States may, in respect of their own nationals, take supplementary measures which, so long as they comply with Community law and are consistent with the common fisheries policy, may impose stricter provisions designed to police and to enforce that policy. That is what condition 10.3 of the licence does. Its imposition was not in our view incompatible with Community law.

[10] For these reasons the devolution issues raised in the appellant's minute must be determined against him and this appeal refused. We shall remit to the Sheriff to proceed as accords.

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