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Cite as: [2005] ScotHC HCJAC_18, [2005] HCJAC 18

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Procurator Fiscal Banff v. Stewart Poland [2005] ScotHC HCJAC_18 (25 February 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Osborne

Lord Macfadyen

[2005HCJAC18]

Appeal No: XJ1149/04

OPINION OF THE COURT

delivered by LORD MACFADYEN

CROWN BILL OF ADVOCATION

PROCURATOR FISCAL, Banff

Complainer;

against

STEWART POLAND

Respondent:

_______

Complainer: Di Rollo, Q.C.; Crown Agent

Respondent: Wheatley, Solicitor Advocate; Wheatley & Co.

25 February 2005

Introduction
[1] The respondent was charged on summary complaint at the instance of the complainer with a contravention of the Food Protection (Emergency Prohibitions) (Amnesic Shellfish Poisoning) (East Coast) (No. 4) (Scotland) Order 2003, Article 4, ("the Order") and the Food and Environment Protection Act 1985 (as amended) sections 1(1), (2) and (6) ("the Act"). He tendered a plea to the competency of the complaint. The respondent's contention was that the Order, in particular article 4, was beyond the powers conferred on the Scottish Ministers by the Act. The issue was debated before the sheriff, and he sustained the plea to competency and dismissed the complaint. In this Bill of Advocation the complainer seeks to have that decision recalled.

The primary legislation
[2] Section 1(1) of the Act provides as follows:

"If in the opinion of a designating authority ―
(a)	there exist or may exist circumstances which are likely to create a hazard to human health through human consumption of food;
(b)	in consequence food which is or may be in the future in an area ―
	(i)	of land in the United Kingdom;
	(ii)	of sea within British fishery limits; or
	(iii)	both of such land and of such sea,
	or which is or may be in the future derived from anything in such an area, is, or may be, or may become, unsuitable for human consumption,
that designating authority may by statutory instrument make an order designating that area and containing emergency prohibitions."

[3] In terms of section 1(2) the Scottish Ministers are the designating authority in relation to Scotland and the Scottish zone. The same subsection defines "emergency prohibitions" as meaning the prohibitions specified in Schedule 1 to the Act.

[4] Section 1(6) provides inter alia as follows:

	"... any person who―
	(a)	contravenes an emergency prohibition; ...
	shall be guilty of an offence."

[5] Section 22(1) provides:

"In any proceedings for an offence under this Act it is a defence for the person charged to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence."

[6] Paragraph 1 of Schedule 1 to the Act provides inter alia as follows:

	"An emergency order may prohibit any of the following in the designated area ―
	(d)	fishing for and taking fish; ..."
In section 24(1) "fish" is defined as including shellfish, "fishing" is defined as including fishing for shellfish, and "shellfish" is defined as including crustaceans or molluscs of any kind.

The subordinate legislation
[7] The Order was made by the Scottish Ministers in exercise of the powers conferred on them by inter alia section 1(1) and (2) of the 1985 Act.

[8] In article 1(2)(a), it defines "scallops" as meaning scallops of the class of Pecten maximus. In article 2 it sets out the circumstances leading to the making of the Order, namely that scallops in the designated areas may be affected by the toxin which causes amnesic shellfish poisoning in human beings and are likely to create a hazard to human health if consumed. Article 3, by reference to the Schedule to the Order, specifies the designated areas.

[9] Article 4 provides that:

"No person shall fish for or take any scallops in the designated areas".

[10] Article 5 prohibits the moving of any scallops out of the designated areas. Article 6 sets out a number of restrictions. These may be summarised as being the prohibition of (a) the use of any scallops taken out of the designated areas in the preparation or processing of food; (b) landing any scallops which were in waters in the designated areas; (c) supplying or possessing for supply any scallops which were in the designated areas, (d) supplying or possessing for supply any food in the preparation or processing of which anything was used in contravention of paragraph (a); and (e) feeding to any creature a feeding stuff in the preparation or processing of which anything was used in contravention of paragraph (a).

The sheriff's decision
[11] Before the sheriff the submission for the respondent was that the Order was ultra vires because it purported to prohibit fishing for or taking scallops, whereas the power conferred on the Scottish Ministers was to prohibit fishing for and taking fish. The sheriff accepted that submission. He construed paragraph 1(d) of the Schedule to the Act as creating a power to prohibit "the conjoined process of both fishing for and taking fish". He expressed the view that there was no need to penalise "fishing for" alone, as the mere process of fishing did not give rise to a public risk. It was, he said, the "taking" that gave rise to the risk of food entering the human food chain when it should not do so. It was, however, inappropriate to penalise the "taking of fish" in isolation, as prohibited fish could well be taken by accident when fishing for some other species; and unnecessary to do so because the same objective could be achieved by restrictions on movement and landing.

The complainer's submissions
[12] The Advocate depute submitted that the legislation which fell to be construed was to be regarded, not as primarily penal in character, but rather as a food safety measure designed to protect the public from the risk of ingesting food containing toxic substances hazardous to their health. The offence under section 1(6) of the Act was the contravention of an emergency prohibition. Paragraph 1 of Schedule 1 empowered the Scottish Ministers to prohibit the activity of fishing, and to prohibit the separate activity of taking fish. It was wrong to read the phrase as referring to a single activity, a "conjoined process" to use the sheriff's terminology. It was possible to fish without taking fish. Equally, it was possible to take a particular sort of fish without fishing for it, for example by accident while fishing for some other sort of fish. There was a rational basis, in food safety legislation, for prohibiting each of these activities separately. The person who took by accident had the protection of the defence created by section 22 - he was not guilty of an offence if he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence. In contrast to section 1(6), which authorised the imposition of prohibitions, article 1 of the Order was concerned with the actual imposition of the prohibition of the activities which the Act empowered the Scottish Ministers to prohibit. It imposed a prohibition on each activity separately, by the use of the phrase "fish for or take any scallops". To prohibit only the conjoined process of fishing for and taking scallops would be an ineffective safeguard.

The respondent's submissions
[13] Mr Wheatley, who appeared for the respondent, submitted that the sheriff's approach was correct. By using the phrase "fishing for and taking fish" in paragraph 1(d) of the Schedule to the Act, Parliament had indicated an intention that what might be prohibited was the single activity of fishing for and taking fish, not each of its component parts. There was no need to prohibit fishing for scallops if none were taken, since without taking they would not become available for human consumption. There was no need to prohibit taking of scallops which occurred without intentional fishing for scallops, because in such a situation the public was adequately protected by the prohibition of movement out of the designated area imposed by article 5 and the restrictions on landing and other activities set out in article 6.

Discussion
[14] In our opinion, the making of article 4 of the Order in the terms in which it is expressed was clearly within the powers conferred on the Scottish Ministers by section 1(1) of and paragraph 1(d) of Schedule 1 to the 1985 Act.

[15] The fact that the phrase "fishing for and taking fish" is used in paragraph 1(d) of Schedule 1 of the Act, and the different phrase "fish for or take any scallops" is used in article 4 of the Order is readily explained as a matter of syntax. When conferring the power to impose emergency prohibitions, Parliament identified the activities which might be prohibited as both "fishing for [fish]" and "taking fish". The meaning of the words used is the same as if the paragraph said "An emergency order may prohibit ... fishing for [fish]" and also "An emergency order may prohibit ... taking fish". To have used "or" instead of "and" in that context would have provoked argument as to whether the power was confined to prohibiting only one or other activity, and did not permit the prohibition of both. Given the power expressed as it is in paragraph 1(d), when the Scottish Ministers came to impose an actual prohibition, and wished to prohibit both fishing for scallops and the taking of scallops, that is to prohibit both of the activities which they had power to prohibit, the natural way of doing so was to say: "No person shall fish for or take any scallops". They thus made clear that the performance of either activity was prohibited. The change from "and" to "or", so far from going beyond their powers, was necessary as a matter of syntax in order to make it clear that their powers were being exercised to the full extent permitted by Parliament.

[16] The matter does not, however, rest on syntactical considerations alone. It is in our view right to bear in mind that the provisions in question are designed to protect the public from the risk of food poisoning. It follows, in our view, that the provisions should be construed in the manner best calculated to afford effective protection. The best way to afford such protection is to prohibit both fishing for scallops and taking of scallops. Fishing for scallops is prohibited because that is the activity which, if carried out in the designated areas, is likely to set in train a sequence of events which will give rise to a risk that members of the public will be poisoned. At the same time, taking scallops is also prohibited, because the risk can arise if scallops are taken in the designated area, whether they were purposely fished for or not. Although other prohibitions and restrictions exist under articles 5 and 6, their existence does not in our view render it improbable that Parliament intended that the Scottish Ministers should have power to prohibit both fishing and taking, by making it an offence to do either. The legislation is primarily protective, but it is reinforced by criminal sanctions. Its effectiveness as a protective measure would be impaired if it were construed as requiring both deliberate fishing for the prohibited fish, and the actual taking of the prohibited fish to constitute the offence. Although construing the power as a power to prohibit both fishing alone and taking alone leaves a person who takes by accident vulnerable to a charge of contravening the prohibition, a matter which clearly concerned the sheriff, such a person has a defence available under section 22 if he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence. That, in our view, holds a fair balance between the accidental offender and the public interest in avoiding the risk of food poisoning.

[17] In the course of his submission, the Advocate depute indicated that, contrary to the sheriff's understanding that no risk arose from fishing alone, the process of fishing could by itself, without any actual taking of scallops, result in the spreading of the toxins. We are unable to reach any conclusion on that matter of fact without evidence. We have therefore left that consideration out of account in construing the legislation.

Result
[18] In the circumstances we are of opinion that article 4 of the Order is within the power conferred on the Scottish Ministers by section 1(1) of and paragraph 1(d) of Schedule 1 to the 1985 Act. We shall accordingly recall the sheriff's decision of 16 June 2004 and remit to him to proceed as accords.