Citation and commencement

1. This Order may be cited as the Sea Fishing (Landing and Weighing of Herring, Mackerel and Horse Mackerel) Order 2009 and comes into force on 12th August 2009.

Application

2.–(1) This Order applies–

(a) in England;

(b) in relation to English fishing boats and Welsh fishing boats wherever they are, except when they are in Wales;

(c) in relation to other fishing boats within British fishery limits(6) except when they are in–

(i) the Scottish zone (as defined in section 126(1) of the Scotland Act 1998(7)),

(ii) the Northern Ireland zone (as defined in section 98(1) of the Northern Ireland Act 1998(8)),

(iii) Wales, or

(iv) the territorial sea adjacent to the Isle of Man, Jersey(9) or Guernsey.

(2) In this article–

(a) "English fishing boat" means a fishing boat which is–

(i) registered, with its specified port being in England, or

(ii) owned wholly by persons qualified to own British ships for the purposes of Part II of the Merchant Shipping Act 1995(10), other than a Welsh fishing boat, a Northern Ireland fishing boat or a Scottish fishing boat;

(b) "Northern Ireland fishing boat" means a fishing boat which is registered, with its specified port being in Northern Ireland;

(c) "registered" means registered in the register maintained under section 8 of the Merchant Shipping Act 1995, and "specified port" means the port specified in the entry in that register as the one to which the boat is to be treated as belonging;

(d) "Scottish fishing boat" means a fishing boat which is registered, with its specified port being in Scotland;

(e) "Wales" has the meaning given in section 158(1) of the Government of Wales Act 2006(11); and

(f) "Welsh fishing boat" means a fishing boat which is registered, with its specified port being in Wales.

Interpretation

3.–(1) In this Order–

"British sea-fishery officer" has the same meaning as in section 7 of the Sea Fisheries Act 1968(12);

"the Commission Regulation" means Commission Regulation (EC) No 1542/2007 on landing and weighing procedures for herring, mackerel and horse mackerel;

"the Control Regulation" means Council Regulation (EEC) No 2847/93 establishing a control system applicable to the common fisheries policy; and

"equivalent provision" means a provision in any other Order extending to any part of the United Kingdom which has equivalent effect to a provision in this Order, proceedings in respect of which may be taken in England by virtue of section 30(2A) of the Fisheries Act 1981(13).

(2) In this Order, a reference to a document includes a reference to–

(a) any map, plan, graph or drawing;

(b) any photograph;

(c) any data, however reproduced, communicated via a fisheries monitoring centre established under Article 3(7) of the Control Regulation;

(d) any disk, tape, sound track or other device on which sounds or other data, other than visual images, are recorded so as to be capable of being reproduced with or without the aid of some other equipment;

(e) any film, microfilm, negative, tape, disk or other device on which one or more visual images are recorded so as to be capable of being reproduced with or without the aid of some other equipment.

(3) Except in article 18 (admissibility of documents in evidence), other terms used in this Order that are also used in the Commission Regulation have the meaning they bear in the Commission Regulation.

(4) In this Order–

(a) any reference to the Commission Regulation is a reference to the Commission Regulation as amended from time to time; and

(b) any reference to the Control Regulation is a reference to the Control Regulation as amended from time to time.

Designated ports

4. For the purposes of Article 2 of the Commission Regulation (designated ports for landings of herring, mackerel and horse mackerel), the designated ports are–

(a) for the landing of herring, other than herring caught in ICES zones IVc and VIId–

(i) Brixham,

(ii) Fleetwood,

(iii) Grimsby,

(iv) North Shields,

(v) Plymouth,

(vi) Scarborough, and

(vii) Whitehaven;

(b) for the landing of herring caught in ICES zones IVc and VIId, Lowestoft; and

(c) for the landing of mackerel and horse mackerel–

(i) Brixham,

(ii) Fleetwood,

(iii) Plymouth, and

(iv) Whitehaven.

Competent authority

5.–(1) For the purposes of the provisions of the Commission Regulation specified in paragraph (2), the competent authority is the Secretary of State.

(2) The provisions are–

(a) Article 3(1) (informing competent authority in advance of entry into port);

(b) Article 4 (authorisation to discharge catch);

(c) Article 5(1) (submission to competent authority of pages of logbook);

(d) Article 7(2)(b) and (3)(a) (approval by competent authority to weigh fresh fish after transport);

(e) Article 13 (submission to competent authority of sales note or takeover declaration);

(f) Article 14 (access by competent authority to logbooks etc.);

(g) Article 15 (carrying out cross-checks); and

(h) Article 16 (inspection of landings).

Approval of weighing systems

6.–(1) The Secretary of State may approve a weighing system if the Secretary of State is satisfied that it is suitable for weighing herring, mackerel or horse mackerel.

(2) The Secretary of State may–

(a) determine conditions to which an approval given under paragraph (1) may be subject; and

(b) amend such conditions.

(3) Where there is a contravention of, or a failure to comply with, a condition determined under paragraph (2), the owner of the weighing system, the operator of that system and the owner of the premises in which that system is located are each guilty of an offence.

(4) A person is guilty of an offence if that person interferes with a weighing system approved under paragraph (1) and, by so doing, causes that system to provide an inaccurate weight reading.

Weighing of fresh herring, mackerel and horse mackerel

7.–(1) A person is guilty of an offence if that person fails to comply with any of the following requirements of the Commission Regulation–

(a) the first sentence of Article 6(1) (requirement to weigh on an approved weighing system);

(b) the second sentence of Article 6(1) (requirement to weigh prior to the fish being sorted, processed, held in storage and transported from the port of landing or resold);

(c) Article 9(2) (requirement, where privately operated weighing facilities are used, to weigh on a system which has been approved, calibrated and sealed).

(2) But a person is not guilty of an offence under paragraph (1)(b) where the requirements in Article 7(1), (2) and (3) of the Commission Regulation (conditions to be satisfied in relation to weighing after transport) are complied with.

(3) For the purposes of Article 7(2)(a) of the Commission Regulation (requirement that an inspector accompany a tanker in which fish is transported before weighing), a British sea-fishery officer must accompany the tanker.

(4) A weighing system is to be treated as an approved weighing system as required by the first sentence of Article 6(1) and Article 9(2) of the Commission Regulation if–

(a) it has been approved by the Secretary of State under article 6(1) of this Order; or

(b) it has been passed as fit for use for trade in accordance with regulation 15 of the Weighing Equipment (Beltweighers) Regulations 2001(14).

Offences in relation to provisions of the Commission Regulation

8.–(1) The person in charge of a fishing boat is guilty of an offence if, in relation to that boat, the person contravenes, or fails to comply with, a provision of the Commission Regulation specified in the left column of Part 1 of the Schedule.

(2) A person is guilty of an offence if that person fails to comply with a provision of the Commission Regulation specified in the left column of Part 2 of the Schedule.

(3) In paragraph (1), the "person in charge" of a fishing boat means the owner, the master and the charterer (if any) of that boat, and the agent of any of them.

Penalties

9.–(1) A person found guilty of an offence under any of article 6(3) or (4), 7(1), 8(1) or (2) or 16(1) or under an equivalent provision is liable–

(a) on summary conviction, to a fine not exceeding £50,000;

(b) on conviction on indictment, to a fine.

(2) A court by or before which a person is convicted of an offence referred to in paragraph (1) may also order–

(a) the forfeiture of–

(i) any fish in respect of which the offence was committed, and

(ii) any fishing gear used in the course of, or in activities leading to, the commission of the offence; or

(b) a fine not exceeding the value of any fish in respect of which the offence was committed.

Recovery of fines

10.–(1) Where a magistrates´ court imposes a fine on a person convicted of an offence under this Order or under an equivalent provision, the court may–

(a) for the purpose of levying the amount of the fine, issue a warrant of distress against–

(i) the boat involved in the commission of the offence,

(ii) its gear and catch, and

(iii) any property of the person convicted; and

(b) order that the boat, its gear and catch be detained until the earlier of–

(i) the expiry of a period not exceeding three months from the date of the conviction,

(ii) the fine being paid,

(iii) the amount of the fine being levied in pursuance of any such warrant.

(2) Sections 77(1) and 78 of the Magistrates´ Courts Act 1980(15) apply to a warrant of distress issued under this article as they apply to a warrant of distress issued under Part III of that Act.

(3) Where, in relation to a fine in respect of an offence under this Order or under an equivalent provision, an order under article 95 of the Magistrates´ Courts (Northern Ireland) Order 1981(16) or section 222 of the Criminal Procedure (Scotland) Act 1995(17) (which deal with the transfer of fines from one jurisdiction to another) specifies a local justice area in England and Wales, this article applies as if the fine were imposed by a court within that area.

Powers of British sea-fishery officers in relation to fishing boats

11.–(1) For the purpose of enforcing this Order or an equivalent provision, a British sea-fishery officer has the powers set out in this article in relation to a fishing boat to which this Order applies.

(2) A British sea-fishery officer may go on board the boat, with or without persons assigned to assist in that officer´s duties, and may require it to stop and do anything else which will facilitate boarding or disembarkation.

(3) A British sea-fishery officer may require the attendance of the master and other persons on board and may make any examination and inquiry as appears to the officer to be necessary for the purpose mentioned in paragraph (1), and in particular may–

(a) search for fish or fishing gear on the boat and examine any fish on the boat and the equipment of the boat, including the fishing gear, and require persons on board to do anything which appears to the officer to be necessary for facilitating the examination;

(b) require any person on board to produce any document in that person´s custody or possession relating to the boat, to any fishing or ancillary operations or to persons on board;

(c) for the purpose of ascertaining whether an offence under this Order or an equivalent provision has been committed, search the boat for any such document and may require any person on board to do anything which appears to the officer to be necessary for facilitating the search;

(d) inspect and copy any such document produced or found on board and, where any such document is kept by means of a computer, require it to be produced in a form in which it may be taken away;

(e) where the boat is one in relation to which the officer has reason to suspect that an offence under this Order or an equivalent provision has been committed, seize and detain any such document produced or found on board for the purpose of enabling it to be used as evidence in proceedings in connection with any offence under this Order or an equivalent provision.

(4) Where it appears to a British sea-fishery officer that an offence under this Order or an equivalent provision has at any time been committed in relation to a fishing boat, the officer may–

(a) take, or require the master of the boat to take, the boat and its crew to the port which appears to the officer to be the nearest convenient port; and

(b) detain, or require the master to detain, the boat in the port.

(5) A British sea-fishery officer who detains or requires the detention of a boat must serve on the master a written notice stating that the boat is, or is required to be, detained until the notice is withdrawn by the service on the master of a further written notice signed by a British sea-fishery officer.

Powers of British sea-fishery officers on land

12.–(1) For the purpose of enforcing this Order or an equivalent provision, a British sea-fishery officer may–

(a) enter and inspect at any reasonable time any premises used for carrying on any business in connection with the operation of fishing boats (or any connected or ancillary activities) or with the treatment, storage, weighing or sale of fish or fisheries products;

(b) bring such other persons as appear to the officer to be necessary and any equipment or materials;

(c) examine any fish or fisheries products on the premises and require persons on the premises to do anything which appears to the officer to be necessary for facilitating the examination;

(d) carry out at the premises such other inspections or tests as may reasonably be necessary, including inspections and tests relating to equipment used to weigh fish;

(e) require any person not to remove or cause to be removed any fish or fisheries products from the premises for such period as may be reasonably necessary for the purposes of establishing whether an offence under this Order or an equivalent provision has been committed;

(f) require any person on the premises to produce any documents in that person´s custody or possession relating to the catching, landing, weighing, transportation, transhipment, sale or disposal of any fish or fisheries products or to the entry to, or exit from, any port or harbour by any fishing boat;

(g) for the purpose of ascertaining whether any person present has committed an offence under this Order or an equivalent provision, search the premises for any such document and require any person present to do anything which appears to the officer to be necessary for facilitating the search;

(h) inspect and take copies of any such document produced or found on the premises;

(i) require any appropriate or responsible person to render any such document on a computer system into a visible and legible form, including requiring it to be produced in a form in which it may be taken away; and

(j) if the officer has reason to suspect that an offence under this Order or an equivalent provision has been committed, seize and detain any such document produced or found on the premises for the purpose of enabling it to be used as evidence in proceedings in connection with any offence under this Order or an equivalent provision.

(2) The provisions of paragraph (1) also apply in relation to any land used in connection with any of the activities described in paragraph (1)(a), or in respect of any vehicle which a British sea-‘fishery officer has reasonable cause to believe is being used to transport fish or fisheries products, as they apply in relation to premises and, in the case of a vehicle, include power to require the vehicle to stop at any time and, if necessary, direct the vehicle to some other place to facilitate the inspection.

Warrants to enter premises

13.–(1) A justice of the peace who on sworn information in writing is satisfied that the circumstances in paragraph (2) apply may issue a warrant authorising a British sea-fishery officer to enter any premises, if necessary using reasonable force, and to take with that officer such persons as appear to be necessary.

(2) The circumstances are that–

(a) there are reasonable grounds to believe that any documents or other items which a British sea-fishery officer has power under article 12 to inspect are on the premises;

(b) the inspection of such documents or other items is likely to disclose evidence of the commission of an offence under this Order or an equivalent provision; and

(c) either–

(i) entry to the premises has been or is likely to be refused and notice of intention to apply for a warrant has been given to the occupier,

(ii) an application for entry, or the giving of notice, would defeat the object of the entry,

(iii) the premises are unoccupied, or

(iv) the occupier is temporarily absent and it might defeat the object of the entry to await that person´s return.

Powers of British sea-fishery officers to seize fish and fishing gear

14. A British sea-fishery officer may seize–

(a) any fish, including any receptacle which contains the fish, in respect of which the officer has reasonable grounds to suspect that an offence under this Order or an equivalent provision has been committed;

(b) any net or other fishing gear which the officer has reasonable grounds to suspect has been used in the commission of such an offence.

Protection of officers

15.–(1) An officer is not liable in any civil or criminal proceedings for anything done or omitted to be done in the purported exercise of the powers conferred by article 11, 12, 13 or 14 if the court is satisfied that–

(a) the officer acted in good faith;

(b) there were reasonable grounds for so acting; and

(c) the officer acted with reasonable skill and care.

(2) In paragraph (1), "officer" means–

(a) a British sea-fishery officer; or

(b) a person assisting a British sea-fishery officer by virtue of–

(i) article 11(2) or 12(1)(b), or

(ii) a warrant issued under article 13.

Obstruction of officers

16.–(1) A person is guilty of an offence if that person–

(a) fails without reasonable excuse to comply with any requirement imposed by a British sea-fishery officer under the powers conferred by this Order;

(b) without reasonable excuse, prevents, or attempts to prevent, any other person from complying with any such requirement;

(c) assaults an officer who is exercising any of the powers conferred by this Order; or

(d) intentionally obstructs an officer in the exercise of any of the powers conferred by this Order.

(2) In paragraph (1)(c) and (d), "officer" means–

(a) a British sea-fishery officer; or

(b) a person assisting a British sea-fishery officer by virtue of–

(i) article 11(2) or 12(1)(b), or

(ii) a warrant issued under article 13.

Offences by corporate bodies

17.–(1) If an offence under this Order or an equivalent provision committed by a body corporate is shown to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, an officer, that officer as well as the body corporate is guilty of the offence and is liable to be proceeded against and punished accordingly.

(2) If the affairs of a body corporate are managed by its members, paragraph (1) applies in relation to the acts and defaults of a member in connection with that member´s functions of management as if that member were a director of the body.

(3) In this article "officer", in relation to a body corporate, means a director, member of the committee of management, chief executive, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity.

Admissibility of documents in evidence

18.–(1) In any proceedings in respect of an offence under this Order or an equivalent provision, a document specified in paragraph (2) is evidence of the matters stated in that document.

(2) The documents are–

(a) a logbook kept under Article 6 or 17(2) of the Control Regulation;

(b) a declaration submitted under Article 8(1), 9, 12, 17(2) or 28f of the Control Regulation;

(c) a sales note or document submitted under Article 9 of the Control Regulation;

(d) a document drawn up under Article 13 of the Control Regulation; or

(e) a document containing required information received by a fisheries monitoring centre established under Article 3(7) of the Control Regulation.

(3) In paragraph (2)(e), "required information" means the following information as communicated via a satellite-based vessel monitoring system established under Article 3(1) of the Control Regulation–

(a) the identification of a fishing boat;

(b) its course and speed;

(c) its most recent geographical position expressed in degrees and minutes of longitude and latitude; and

(d) the date and time of the fixing of that position.

(4) Terms used in this article that are also used in the Control Regulation have the meaning they bear in that Regulation.

Revocation

19. The Sea Fishing (Enforcement of Annual Community and Third Country Fishing Measures) (England) Order 2006(18) is revoked.

Article 8

SCHEDULE Specified provisions of the Commission Regulation relating to landings of more than 10 tonnes of herring, mackerel or horse mackerel taken in specified zones

PART 1

PART 2

EXPLANATORY NOTE

(This note is not part of the Order)

This Order makes provision for the enforcement of restrictions and obligations relating to the landing and weighing of herring, mackerel and horse mackerel contained in Commission Regulation (EC) No 1542/2007 (OJ No L 337, 21.12.2007, p. 56) ("the Commission Regulation").

Article 4 designates the ports for the landing of herring, mackerel and horse mackerel.

Article 5 designates the competent authority for purposes of the Commission Regulation.

Article 6 provides that the Secretary of State may approve a weighing system for weighing herring, mackerel or horse mackerel, and article 7 provides that it is an offence for a person to fail to comply with provisions of the Commission Regulation relating to the weighing of fresh fish.

Article 8 provides that it is an offence to contravene, or fail to comply with, the provisions of the Commission Regulation specified in the Schedule. These offences relate to the landing of herring, mackerel and horse mackerel in designated ports, the keeping and production of documents relating to the catch, the procedures for weighing of fresh and frozen fish, and the labelling of frozen fish.

Article 9 sets out the penalties for an offence contained in this Order, and article 10 contains provisions relating to the recovery of fines.

Articles 11 to 14 set out the powers of British sea-fishery officers in relation to the enforcement of this Order.

Article 19 contains a revocation.

An impact assessment of the effect that this Order will have on the costs of business and the voluntary sector is available from the Department for Environment, Food and Rural Affairs, Sea Fisheries Conservation Division, Nobel House, 17 Smith Square, London SW1P 3JR.