Scottish High Court of Justiciary Decisons

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Cite as: 2008 GWD 20-335, [2008] Eu LR 752, 2008 JC 367, [2008] HCJAC 31, 2008 SLT 732, [2008] ScotHC HCJAC_31, 2008 SCCR 637

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Johnston

Lord Reed

C.G.B. Nicholson, C.B.E., Q.C.

[2008] HCJAC31

Appeal No: XJ1091/06

OPINION OF THE COURT

delivered by LORD REED

APPEAL BY STATED CASE

AUSTEN JAMES HASTINGS BROWN

Appellant;

against

THE PROCURATOR FISCAL, OBAN

Respondent:

_______

Act: Summers; Mackinnons, Solicitors, Aberdeen

Alt: Mackay, A.D.; Crown Agent

4 June 2008

Introduction

[1] The appellant was charged on summary complaint with four contraventions of section 4(6) of the Sea Fish (Conservation) Act 1967 as amended ("the 1967 Act"). Charge 1 was in the following terms:

"On 22 February 2005 at Ardrossan Harbour, Ardrossan and elsewhere meantime unknown to the complainer you AUSTEN JAMES HASTINGS BROWN, were the Master and owner of the ASHRONA, being a vessel to which the aftermentioned Order and Act applies, in respect of which there was a contravention and a failure to comply with a condition of the fishing vessel licence relating to said fishing vessel, namely Designated Landing Port condition as specified in conditions 10 and 11 of said licence in that you did fail to advise the UK Fisheries Call Centre that you intended to enter a non-designated port to land your catch and fail to advise the said Call Centre that you had retained on board in excess of one tonne of TAC species on board said vessel; CONTRARY to Article 3 of the Sea Fish Licencing Order 1992 and Section 4(6) of the Sea Fish (Conservation) Act 1967 as amended".

The remaining charges concerned other dates during February and March 2005, and other ports, but were otherwise in similar terms. The relevant facts were not in dispute. The question was whether, on the undisputed facts, the appellant had committed the offences charged. The Sheriff repelled a submission of no case to answer and proceeded to convict the appellant. The issue before us at present is whether he was entitled to do so.

[2] It is not in dispute that the appellant is the master and owner of the vessel in question. The licence relating to the vessel contains, in particular, the following conditions:

"Landing Requirements for All Stocks

10.1 This condition applies to any vessel with an overall length of 15 metres or more.........

10.2 Except as provided for in Condition 11, landings of sea fish shall be made only:

(a) at one of the designated ports listed in column 1 of the table below; and

(b) where appropriate at the designated location within the port, specified in column 3 of that table.

When entering any designated port, vessels must arrive within the designated times listed in column 2 of the table.

[There follows the table referred to]

11.1 The provisions of this paragraph apply to all vessels which:

(a) have an overall length of 15 metres or more; and

(b) have more than one tonne, live weight, in total on board of species for which a TAC has been set; and

(c) intend to arrive at a port, other than a designated port, or intend to arrive at a designated port outside designated times and locations;

..........

Notification of the following information shall be given to the Fisheries Departments' UK Call Centre by one of the following means:

By telephone or marine radio ......;

By fax ........;

By e-mail .......

(i) name of the person making the call;

(ii) the name and registered number of the vessel for which authority to arrive in port is sought;

(iii) the port or location at which the vessel is to arrive;

(iv) the intended date and time (UK local time) of arrival in port;

(v) details of the catch on board by species in kilogrammes, live weight.

Such notifications shall be given at any time between:

(1) 4 and 24 hours prior to arrival in port where arrival will occur between 0001 hours on Tuesday and 2359 hours on Saturday; and

(2) 4 and 72 hours prior to arrival in port where arrival will occur between 0001 hours on Sunday and 2359 hours on Monday.

.........

11.2 When all the information has been provided in accordance with paragraph 11.1 above, by telephone or marine radio, an authorisation number will be issued by the Fisheries Departments' UK Call Centre, along with the recorded time of the authorisation and confirmation of the date and time after which the vessel may arrive at the nominated port or location. This information must be recorded in the comments section of the EC Logsheet(s) relating to the sea fish, before arrival in port.........

11.3 When all the information has been provided in accordance with paragraph 11.1 above, by fax or e-mail, details of the authorisation number, along with the recorded time of the authorisation and confirmation of the date and time after which the vessel may arrive at the nominated port or location, will not automatically be transmitted to the vessel, by the Fisheries Departments' UK Call Centre. Further contact must be made with the Call Centre, by telephone or marine radio, to obtain the authorisation number and authorised date and time of arrival in port, which must then be recorded in the comments section of the EC Logsheet(s), relating to the sea fish, before arrival in port......

11.4 Following the issue of an authorisation referred to above, the vessel must arrive at the nominated port or location within a period of 4 hours, commencing from the date and time as confirmed in accordance with paragraph 11.2 or 11.3 above.

11.5 If, following the issue of an authorisation number, it is not possible to arrive at the nominated port or location within the time period specified in paragraph 11.4, authorisation to amend that period must be sought from the Fisheries Departments' UK Call Centre........

11.6 After the authorisation number and confirmation of the date and time of arrival has been issued, the vessel may go to another port or location. If that port, location of landing, or time of arrival are not all designated in the table at paragraph 10.2 above, a further authorisation number must be obtained from the Fisheries Departments' UK Call Centre by making a notification in accordance with paragraph 11.1. This information must be recorded in the comments section of the EC Logsheet(s) (where applicable) relating to the sea fish, before the arrival of the vessel in port.

11.7 The vessel may not commence landing sea fish, at the port or location communicated in terms of paragraph 11.1, any earlier than 4 hours from the time that the notification, made under paragraph 11.1, 11.5 or 11.6, is recorded as having been received by the UK Call Centre, whichever is the later, unless otherwise authorised by a British sea-fishery officer.

12. This condition applies to all vessels with an overall length of 10 metres or more, landing sea fish at a designated port. Prior to commencing landing, the original (white) copy of the EC Logsheet(s), completed in accordance with Commission Regulation (EEC) No. 2807/83 relating to the sea fish, 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 it has been handed to a British sea-fishery officer. Logsheets submitted in this way shall be deemed to have been submitted in compliance with Commission Regulation (EEC) No. 2807/83".

[3] It is common ground that the appellant's vessel has an overall length of more than 15 metres. It is therefore a vessel to which Condition 10 applied. Condition 10.2 imposed a requirement, "except as provided for in Condition 11", to land sea fish (of whatever species, and in whatever quantities) only at a designated port, and at any designated location within such a port, and to arrive at the designated port within designated times. It is not in dispute that, on each of the occasions in question, the vessel landed its catch at a non-designated port. It follows that the appellant failed to comply with Condition 10, and was therefore guilty of an offence under section 4(6) of the 1967 Act (in terms of which a failure to comply with a condition of such a licence constitutes an offence), unless Condition 11 was applicable and was complied with.

[4] Both before the Sheriff and before this Court, the argument presented on behalf of the appellant was that Condition 11 was inapplicable, since on the occasions in question the appellant did not have on board more than one tonne of "species for which a TAC has been set", as required by Condition 11.1(b). It was contended that, if Condition 11 was inapplicable, it followed that the appellant had been entitled to land his catch at a non-designated port without notifying the UK Fisheries' Call Centre, as he had done. In response, counsel for the respondent disputed the appellant's interpretation of Condition 11.1(b).

[5] For the reasons we have explained, the appellant was bound to comply with Condition 10, unless Condition 11 was applicable and was complied with. It is apparent that the appellant did not comply with Condition 10. In these circumstances, whether Condition 11 was inapplicable, as the appellant contends, or was applicable but was not complied with, as the respondent contends, the appellant was in either event in breach of what the charges describe as

"a condition of the fishing vessel licence relating to said fishing vessel, namely Designated Landing Port condition as specified in conditions 10 and 11 of said licence .....".

The applicability of Condition 11 is relevant only to the specification of the mode of the offence:

"....in that you did fail to advise the said Call Centre that you intended to enter a non-designated port to land your catch and fail to advise the said Call Centre that you had retained on board in excess of one tonne of TAC species on board said vessel .....".

That is therefore the context in which the question as to the interpretation of Condition 11.1(b) arises.

The question of interpretation

[6] As we have explained, it is common ground that the appellant's vessel has an overall length of more than 15 metres and that on each of the occasions in question it landed its catch at a non-designated port without notifying the Fisheries Department. The weight and composition of the catch are also not in dispute. The question is whether, on the undisputed facts, the vessel had on board more than one tonne of "species for which a TAC has been set", within the meaning of Condition 11.1(b). Stating broadly, at this stage, matters which are explained in greater detail below, a total allowable catch (or TAC) is fixed under Community law for a species of fish in respect of a specified geographical area. The TAC is divided between Member States, each of which has a national quota. A TAC may be set for a species in respect of one area but not in respect of another. If fish are caught in an area where the species in question is subject to a TAC, the catch counts towards the national quota of the Member State whose flag the vessel flies; and the landing of fish in excess of quota is prohibited by Community law. If, on the other hand, fish of the same species are caught in an area where the species is not subject to a TAC, the catch does not count towards the quota, and its landing is not prohibited by Community law.

[7] Against that background, the primary contention of the appellant is that Condition 11.1(b) should be interpreted as referring to fish which have been caught in an area where that species is subject to a TAC, and which therefore count towards the quota, and not as referring to all fish belonging to a species for which a TAC has been set regardless of where they have been caught. In effect, the appellant contends that Condition 11.1(b) should be construed as if it read:

"..... have more than one tonne, live weight, in total on board of species for which a TAC has been set and which have been caught in an area in respect of which a TAC has been set for that species".

In support of that contention, it was argued that a literal construction of the phrase in question would have no rationale in terms of the relevant EC legislation. It was not however suggested that, so construed, the condition would be unreasonable in a Wednesbury sense or ultra vires (cf. Colley v Duthie 1993 S.C.C.R.737). Nor was it argued that the condition lacked legal certainty (cf. R v Bossom [2006] 4 All E.R.995). On behalf of the respondent, on the other hand, it was argued that Condition 11.1(b) should be read literally and without qualification. It was submitted that, in addition to the enforcement of quotas, there might be a wider interest in monitoring generally catches of species for which a TAC had been set elsewhere.

[8] A further contention on behalf of the appellant was that one of the species on board on the occasions in question, namely ling, was not a "species for which a TAC has been set" within the meaning of Condition 11.1(b). That contention was based on the terms of the relevant EC legislation, which is discussed below.

Community Law

[9] Community law in relation to fisheries is highly complex. For the purposes of the present case, however, it is necessary to refer only to a small number of provisions.

Regulation 2371/2002

[10] One aspect of the Common Fisheries Policy is a conservation policy to ensure that fish stocks are not exhausted through unlimited fishing. The principal Regulation in relation to that policy is Regulation (EC) No. 2371/2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy. That Regulation, and the other EC legislation to which we have to refer, has undergone frequent amendment: we refer to all the legislation in question as it stood at the time of the events with which we are concerned.

[11] Article 4 of Regulation 2371/2002 requires the Council to adopt the measures necessary to ensure the sustainable pursuit of fishing activities. In terms of Article 4(2) such measures may in particular include

".....measures for each stock or group of stocks to limit fishing mortality and the environmental impact of fishing activities by:

.......

(d) limiting catches".

The term "stock" is defined by Article 3 as meaning "a living aquatic resource that occurs in a given management area"; and the expression "living aquatic resource" is defined, put shortly, as meaning a marine species.

[12] Article 20 requires the Council to decide on "catch and/or fishing effort limits and on the allocation of fishing opportunities among Member States". Each Member State is then required by Article 20 to decide, for vessels flying its flag, on the method of allocating the fishing opportunities assigned to that Member State.

[13] Provision in relation to control and enforcement by Member States is made by Articles 23 and 24:

"Article 23

Responsibilities of Member States

1. Unless otherwise provided for in Community law, Member States shall ensure effective control, inspection and enforcement of the rules of the Common Fisheries Policy.

2. Member States shall control the activities carried out within the scope of the Common Fisheries Policy on their territory or in the waters subject to their sovereignty or jurisdiction....They shall be responsible for placing observers on board fishing vessels and for taking appropriate decisions, including the prohibition of fishing activities.

3. Member States shall adopt the measure, allocate the financial and human resources and set up the administrative and technical structure necessary for ensuring effective control, inspection and enforcement, including satellite based monitoring systems.....

.....

Article 24

Inspection and enforcement

Member States shall take the inspection and enforcement measures necessary to ensure compliance with the rules of the Common Fisheries Policy on their territory or in the waters subject to their sovereignty or jurisdiction. They shall also take enforcement measures relating to the fishing activities outside Community waters of Community fishing vessels flying their flag and of their nationals.

Such measures shall include:

(a) Spot checks and inspections on fishing vessels, the premises of businesses and other bodies with activities relating to the Common Fisheries Policy;

(b) sightings of fishing vessels ......"

Regulation 27/2005

[14] Pursuant to Articles 4 and 20 of Regulation 2371/2002, the Council adopted Regulation (EC) No. 27/2005, fixing the fishing opportunities for 2005. Article 5(1) provided:

"Fishing opportunities for Community vessels in Community waters or in certain non-Community waters and the allocation of such fishing opportunities among Member States shall be as set out in Annex 1".

The expression "fishing opportunities" was defined for the purposes of the Regulation, by Article 3, as meaning:

"(i) total allowable catches ('TACs') or the number of vessels authorised to fish and/or the duration of these authorisations;

(ii) shares of the TACs available to the Community;

(iii) quotas allocated to the Community in third country waters;

(iv) allocation of Community fishing opportunities under (ii) and (iii) to Member States in the form of quotas;

(v) allocation to third countries of quotas to be fished in Community waters".

The species for which TACs and quotas were fixed were listed in Annex 1. The quotas and TACs in respect of the relevant species and areas were specified in Annexes 1A to 1F. In particular, Annex 1B specified the fishing opportunities in respect of waters which included ICES areas VIa (West of Scotland) and VIIa (Irish Sea), where the appellant was fishing on the occasions in question.

[15] Annex 1B fixed a TAC, and a UK quota, in respect of zones which included areas VIa and VIIa for several of the species of fish which were on board the appellant's vessel on the occasions in question. Other species on board were subject to TACs and UK quotas in respect of other zones, but not in respect of areas VIa or VIIa. One species, namely ling, was the subject of a UK quota, and of quotas for other Member States and for the EC as a whole, in respect of a number of zones, including zones which included areas VIa and VIIa, but no TAC was specified. Neither counsel was able to provide a clear explanation of the different treatment of that species.

[16] Article 8(1) of Regulation 27/2005 provided that fish from stocks for which fishing opportunities were fixed were not to be retained on board or landed unless

"the catches have been taken by vessels of a Member State having a quota and that quota is not exhausted ...."

Article 8(2) provided that, subject to exceptions which are immaterial to the present case, all landings were to count against the quota.

Regulation 2847/93

[17] The principal Regulation in relation to the monitoring and enforcement of the Common Fisheries Policy is Regulation (EEC) No. 2847/93 establishing a control system applicable to the Common Fisheries Policy.

[18] Articles 2 to 5 require Member States to carry out monitoring, inspection and surveillance. In particular, Article 2(1) provides:

"In order to ensure compliance with all the rules in force, each Member State within its territory and within maritime waters subject to its sovereignty or jurisdiction shall monitor, inspect and maintain surveillance of all activities in the fisheries sector, particularly fishing itself, transhipment, landing, marketing, transport and storage of fisheries products and the recording of landing and sales. The Member States shall take the necessary measures to ensure the best possible control within their territory and within maritime waters subject to their sovereignty or jurisdiction, taking into account their particular situation".

[19] In relation to the monitoring of catches, Articles 6 to 8 provide:

"Article 6

1. The masters of Community fishing vessels fishing for a stock or group of stocks shall keep a logbook of their operations, indicating particularly the quantities of each species caught and kept on board, the date and location (ICES statistical rectangle) of such catches and the type of gear used.

2. From 1 January 2000 any amount greater than 50 kg of live-weight equivalent of any species retained on board, must be recorded in the logbook in areas other than the Mediterranean ......

3. The masters of Community fishing vessels shall enter in their logbook the quantities caught at sea, the date and location of these catches and the species referred to in paragraph 2.

.....

Article 7

1. The Master of a Community fishing vessel who wishes to utilize landing locations in a Member State other than the flag Member State shall comply with the requirements of any designated port scheme established by that Member State in accordance with Article 38, or if that Member State does not operate such a scheme, he must inform the competent authorities in that Member State at least four hours in advance of:

- the landing location(s) and estimated time of arrival there,

- the quantities of each species to be landed.

....

Article 8

1. The master of each Community fishing vessel having on overall length equal to, or more than, 10 metres, or his representative, shall after each trip and within 48 hours of landing submit a declaration to the competent authorities of the Member State where the landing takes place. The master shall be responsible for the accuracy of the declaration, which shall indicate, as a minimum, the quantities landed of each species stipulated in Article 6(2) and the area where they were caught".

[20] The rationale of these provisions is explained in the recitals to the Regulation. Recitals 9, 13 to 15, 18 and 19 are particularly relevant:

"[9] Whereas, to ensure that all catches and landings are kept under surveillance, Member States must monitor in all maritime waters the activities of Community vessels and all related activities allowing verification of the implementation of the rules concerning the common fisheries policy;

.....

[13] Whereas the management of fisheries by the fixing of TACs requires detailed knowledge of the composition of catches, such knowledge being equally necessary for the other procedures provided for in Regulation (EEC) No.3760/92 [the predecessor of Regulation 2371/2002]; whereas this requires the keeping of a logbook by each master of a fishing vessel;

[14] Whereas it is necessary for the Member State of landing to be able to monitor landings on its territory .....

[15] 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 [sic] purchased;

.....

[18] Whereas limitations on catches must be managed at both Member State and Community level; whereas Member States should register landings and notify them to the Commission .....

[19] Whereas, in order to ensure the conservation and management of all the resources used, the provisions relating to the logbook, the landing and sales declarations and the information concerning transhipments and registration of catches may be extended to stocks which are not subject to a TAC or quota".

[21] The only other provision of Regulation 2847/93 which it is necessary to note is Article 38, which 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".

The appellant's licence

[22] The Community legislation which we have discussed is implemented in the UK principally through the licensing system established under the 1967 Act. Licences are issued pursuant to the Sea Fish Licensing Order 1992 (SI 1992 No.2633), as amended. They contain conditions which reflect the UK's obligations under the Common Fisheries Policy; and, as we have explained, the breach of those conditions constitutes an offence. Additional provision (including powers of inspection) is made by other subordinate legislation, including in particular the Sea Fishing (Enforcement of Community Control Measures) (Scotland) Order 2000, SSI 2000, No.7, as amended.

[23] The appellant's licence states:

"The authority granted by this licence and the limitations to that authority are contained in the Schedule which forms part of this licence. This licence is also subject to the attached conditions".

Note 1 to the licence states:

"The purpose of this licence is to enable Fisheries Ministers in the UK, in conformity with the Common Fisheries Policy to monitor and control the quantity of fish taken by fishing vessels flying the flag of the United Kingdom, Channel Islands or Isle of Man, and to ensure that vessels fishing against the United Kingdom's quotas have a real economic link with the United Kingdom, Channel Islands or Isle of Man".

Paragraph 1 of the Schedule states that, subject to specified limitations, the licence authorises the vessel to fish for all species of sea fish in certain specified areas, and for particular species in certain other specified areas. In terms of paragraph 3, the licence is valid for 2005. In terms of paragraph 15, the authority of the licence is subject to specified quota limitations, expressed as the maximum amount of particular species or groups of species that may be caught in specified sea areas and retained on board, landed or transhipped per week or calendar month. In that regard, conversion factors are given for calculating the live weight of certain "TAC species", as they are described. Those species include ling.

[24] Condition 8 is intended to ensure that vessels fishing against UK quotas have an economic link with the UK. In that regard, it requires that at least 50 per cent of the vessel's landings of "stocks subject to EC quotas" should be landed in the UK, Channel Islands or Isle of Man. As we have explained, the term "stock" means a species occurring in a given management area. A stock is subject to an EC quota only if such a quota applies to the species in question in the area in question. The expression "stocks subject to EC quotas" therefore appears to be confined to catches which count towards such quotas, consistently with the purpose of the condition in question. The same expression is also used in condition 9, which is concerned with a related matter.

[25] As we have explained, Conditions 10 and 12 impose the primary requirement in relation to landings. In particular, Condition 10 requires that "except as provided for in Condition 11", landings of sea fish by vessels with an overall length of 15 metres or more are to be made only at one of the designated ports listed in Condition 10, at the designated location (if any) within the port, and that the vessel must arrive at the port within the designated times listed in the condition. Condition 12 requires that, prior to commencing landing sea fish at a designated port, a copy of the logsheet, completed in accordance with Regulation 2807/83 (which lays down detailed requirements in relation to logbooks and landing declarations) must be deposited in a specified location at the port. As we have explained, Condition 11 provides an exception to the foregoing: it permits vessels with an overall length of 15 metres or more, with "more than one tonne, live weight, in total on board of species for which a TAC has been set", to seek authority to arrive at a non-designated port, or to arrive at a designated port outside designated times. Advance notification has to be given to the Fisheries Departments' UK Call Centre of information including the details of the vessel for which authority is sought, the port at which the vessel is to arrive, the intended date and time of its arrival, and "details of the catch on board by species in kilogrammes, live weight".

[26] At first sight, the meaning of the phrase "species for which a TAC has been set" is straightforward: it would appear to cover any species for which there was at the relevant time a TAC. As we have explained, however, it was contended on behalf of the appellant that the phrase should be construed as if it contained the qualification

"....and which have been caught in an area in respect of which a TAC has been set for that species".

One difficulty with that contention is textual. In the first place, the phrase in question does not contain any such qualification. Furthermore, as we have explained, conditions 8 and 9 are concerned with catches which count towards quotas, and use a phrase which reflects that concern, namely "stocks subject to EC quotas". If it had been intended that Condition 11 should similarly be concerned only with catches of stocks which counted towards TACs, the same or a similar phrase could have been expected to be used. The fact that a phrase of wider scope was used instead suggests that a wider meaning was intended.

[27] Counsel for the appellant submitted however that, since the only rationale for referring to TACs in Condition 11 was the Fisheries' Department's need to monitor and control catches which counted towards TACs (and, therefore, towards UK quotas), it followed that the only catches which could be relevant to that rationale were those which had in fact been caught in areas where the species in question were subject to TACs. This proposition appears to us to be a non sequitur.

[28] As counsel acknowledged, the purpose of the Designated Landing Port condition comprised by Conditions 10 and 11 is to enable the United Kingdom to carry out the monitoring and inspection of catches and landings, in compliance with its obligations under Community law (cf. Matthew v Aitken 2004 S.C.C.R.515 at paragraph 9, where the condition which is now Condition 12 was described as being "designed to police and to enforce" the Common Fisheries Policy). The purpose of having designated ports and designated arrival times is to facilitate such monitoring and inspection, by directing vessels to land their catches at ports where the necessary facilities have been provided, and at times when those facilities are available. If a designated port scheme (as such a system is described in Article 7 of Regulation 2847/93) is to be relaxed so as to allow, exceptionally, for the landing of a catch at a non-designated port or outside designated hours, it is understandable that requirements should be imposed which reflect the purpose of the scheme and the practical exigencies of monitoring and enforcement.

[29] Such requirements are imposed by Condition 11. In particular, it is readily understandable that it should be necessary to give prior notification to the Fisheries Department under Condition 11 in order to obtain authority to land a catch at a non-designated port or outside designated hours. Such notification affords the Fisheries Department an opportunity to make special arrangements for monitoring and inspection measures of the kind which could be undertaken if the landing were made in the ordinary way in accordance with Condition 10. The importance of such monitoring and inspection is illustrated by the facts of the present case: as the Sheriff found, the appellant landed his catch at a non-designated port without giving prior notification to the Fisheries Department, and under-declared the catch substantially in his logbook. In this context, the purpose of the requirement that the vessel must have on board more than a tonne of species for which a TAC has been set appears to be to set a threshold: a landing must be of a certain minimum significance before special arrangements will be made; otherwise, the catch must be landed at a designated port in the ordinary way. Having regard to the UK's obligations in relation to inspection and enforcement (e.g. under Article 2 of Regulation 2847/93 and Article 24 of Regulation 2371/2002), it is understandable that a substantial catch of TAC species should be regarded as significant in that context, regardless (at the stage of notification under Condition 11) of the location where the fish are claimed to have been caught.

[30] We therefore consider that the phrase "species for which a TAC has been set", in Condition 11.1(b) should be interpreted as extending to all species for which a TAC has been set, whether or not a TAC has been set for that species in the area in which the fish on board the vessel were caught.

[31] So interpreted, it is not in dispute that there was more than one tonne of such species on board the vessel on each of the occasions in question, even if the catch of ling were to be disregarded. In those circumstances, it is unnecessary for us to decide whether ling was a species for which a TAC had been set, within the meaning of Condition 11.1(b). We prefer to express no opinion on that question, on which we were not fully addressed.

Conclusion

[32] The questions posed by the Sheriff in the Stated Case were:

1. Did I err in repelling the submission of no case to answer?

2. On the facts stated was I entitled to convict the appellant?

3. Was the sentence excessive in all the circumstances?

We shall answer the first question in the negative and the second question in the affirmative. The appeal will be continued for a hearing on the question of sentence.