Scottish High Court of Justiciary Decisons

You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Procurator Fiscal v. Wood [2005] ScotHC HCJAC_30 (17 March 2005)
URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_30.html
Cite as: [2005] HCJAC 30, [2005] ScotHC HCJAC_30

[New search] [Help]

Procurator Fiscal v. Wood [2005] ScotHC HCJAC_30 (17 March 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Marnoch

LadyCosgrove

Lord Dawson

[2005HCJAC30]

Appeal No: XJ1952/04

OPINION OF THE COURT

delivered by LORD MARNOCH

NOTE OF APPEAL

under section 174(1) of the Criminal Procedure (Scotland) Act 1995

PROCURATOR FISCAL, Fort William

Appellant;

against

KEVIN WOOD

Respondent:

_______

Appellant: Mitchell, A.D.; Crown Agent

Respondent: Wheatley, Solicitor Advocate; Mackinnons, Aberdeen

17 March 2005

[1] The respondent was charged, inter alia, in the following terms:

"(002) you KEVIN WOOD being the Master of a British fishing vessel, namely CRYSTAL RIVER II registered at Banff as BF32 being a vessel to which the aftermentioned Order applies and on 0400 29042003 having set off on a voyage from Mallaig, there having been a failure of the satellite tracking device fitted on board said vessel to operate in accordance with Article 3(5) of the aftermentioned Order in that the satellite tracking device fitted on board said vessel was failing to operate, did between 29 April 2003 and 2 May 2003 and between 8 May 2003 and 9 May 2003 at Mallaig ICES Area Vlb and elsewhere fail to communicate the required information, namely manual reports at least every 2 hours by one of the means specified in Article 6.1 of Commission Regulation (EC) No 1489/97 to the Fisheries Monitoring Centre of the United Kingdom; CONTRARY to the Sea Fishing (Enforcement of Community Satellite Monitoring Measures)(Scotland) Order 2000, Articles 3(7) and 5(1) and the Fisheries Act 1981, Section 30."

[2] Thereafter a Devolution Minute was lodged in respect of which only the following part was ultimately insisted in before the sheriff:

"(ii) The purported or proposed exercise of a function by a member of the Scottish Executive, namely the prosecution of the Accused by the Crown in this case is incompatible with Community law in that it is disproportionate and in breach of express provisions of the European Regulation dealing with the same subject matter. The Accused is charged with failing to communicate the required information, namely manual position reports at least every two hours by telex, fax, telephone message or radio. This requirement is contained in Article 3(7) of the Sea Fishing (Enforcement of Community Satellite Monitoring Measures)(Scotland) Order 2000, as amended. The European legislation which the said Order is stated to implement is the Commission Regulation (EC) No. 1489/97. Article 6, sub-paragraph 1 of that Order provides that in the event of technical failure or non-function of the satellite tracking device fitted on board a fishing vessel, which is what the Crown libel in this case, the master or owner of the vessel or their representatives shall communicate at least every twenty four hours, starting from the time that this event was detected, the data which the Crown in this case libel ought to have been provided every two hours. The requirement of the UK Order is accordingly incompatible with the Community law provision and is disproportionate in that it would require the master of the vessel to spend an excessive time communicating information to such an extent that he would not be able to perform his many other duties as master of a fishing vessel, and to obtain adequate rest so as to enable him to perform such duties."

[3] The arguments contained in the Minute were sustained by the sheriff and the Crown has appealed to this court under section 174(1) of the Criminal Procedure (Scotland) Act 1995.

[4] As regards the argument that Article 3(7) of the Statutory Instrument is expressed in terms more stringent than those of Article 6.1 of the Commission Regulation, the real question came to be whether or not that was permitted by the Commission Regulation when read along with a predecessor Regulation (EEC) No. 2847/93.

[5] The sheriff answered that question in the negative but, in our opinion, he erred in so doing in a number of respects.

[6] In the first place, it is apparent from the preamble to, and Article 1 of, the 1997 Regulation that its intention was to lay down detailed rules for the establishment and operation of satellite-based vessel monitoring systems as envisaged in Article 3.10 of the earlier Regulation referred to above. That earlier Regulation had set up a control system applicable to the common fisheries policy which required Member States, inter alia, to ensure that satellite-tracking devices were installed and fully operational on certain fishing vessels and to establish fisheries monitoring centres prior to 30 June 1998. The origins of the whole satellite-based monitoring system are thus to be found in the 1993 Regulation. What is instructive, however, is that it is provided in the preamble, inter alia, that

"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;".

It is also provided by Article 38 of the Regulation that it, the 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."

And lastly, and perhaps most importantly, it is provided by Article 5 that

"Detailed rules for the application of this Title shall be adopted as necessary, without prejudice to the national competencies (our emphasis) ... in particular as regards:

(b) the procedure for the inspection and surveillance of activities in the

fisheries sector;".

[7] In our opinion the reference to "detailed rules" in Article 5 must include a reference to the "detailed rules" referred to in Article 3.10 and, if we are right about that, it must follow, as night follows day, that all the detailed rules then found in the later 1997 Regulation are similarly "without prejudice to the national competencies". If, however, there were any doubt about that, then we are fortified in our view by the other parts of the parent Regulation referred to above all of which convey the strong impression that the underlying policy in this whole area of community law is that, as is found elsewhere in the preamble to the 1993 Regulation, "control is first and foremost the responsibility of the Member States; ... ".

[8] We may say that we are yet further fortified in the view we have taken by the consideration that the terms of the later Regulation are also to a degree inimical to the idea that the Regulation is intended to be a self-contained, comprehensive and compulsory code. In Article 3(3), for example, it is provided that a fisheries monitoring centre may require the automatic transmission to it of certain data at shorter time intervals than the two hour intervals otherwise specified in that paragraph. And, in Article 6, itself, in the event of the failure or non-function of the satellite tracking device fitted on board a vessel the requirement is that data be communicated "at least (our emphasis) every 24 hours, starting from the time that this event was detected ... ". Provisions so expressed are again, in our view, supportive of the view that Member States are entitled, if not invited, to go beyond even the "detailed rules" of the later Regulation.

[9] For all the foregoing reasons, none of which, it is fair to say, were argued before the sheriff, we are clearly of opinion that the Statutory Instrument in question was not in breach of the express provisions of the Commission Regulation (EC) No. 1489/97.

[10] There remains the argument that the more stringent provisions of the Statutory Instrument were in any event "disproportionate". We deal with this aspect of the case fairly briefly.

[11] In the first place, in the argument as presented to us, and, we suspect, as it was presented to the sheriff, there was a marked lack of focus as to how the concept of "proportionality" could or should be applied in this context. No specific authority was cited to us on the matter. In the second place, whatever might be the test for "disproportionality", as regards the requirement for manual reporting "at least every 2 hours" rather than "at least every 24 hours" (as provided for in Article 6(1) of the 1997 Regulation) we have no hesitation in rejecting the argument that this was in some way "disproportionate". Contrary to what is claimed in the Devolution Minute Article 3(7) of the Statutory Instrument does not require the master to convey the information personally and, bearing in mind that there must be someone on the Bridge of a vessel at sea at all times, we are quite unable to see how the requirement in question is unduly onerous. In that connection it is not without significance that a similar requirement is now embodied in Article 6.1 of an even more recent Council Regulation (EC) No. 2347/2002.

[12] The only other respect in which it was said that Article 3(7) of the Statutory Instrument was disproportionate was that, unlike Article 6.1 of the 1997 Regulation, it made no allowance for the fact that a fault in the satellite tracking device installed in the vessel might go undetected. This, it was said, when fenced with criminal sanctions, amounted to strict, and thus disproportionate, liability under the criminal law. From material handed up to us, however, it is perfectly clear that the reason the subordinate legislation was so framed was that the number of instances of unexplained technical faults experienced in the past had led those concerned to conclude that "further provisions were needed to reduce the opportunities for abuse of the satellite-monitoring regime". In the result, we are again quite unable to say that there is anything inherently unreasonable in the requirement in question, even supposing that that is a test to which it should be made subject.

[13] It follows from the above that, however one looks at it, the argument on "disproportionality" is, as we see it, wholly without merit.

[14] In all the foregoing circumstances we shall allow the appeal and remit to the sheriff to proceed as accords.