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The Powers of Water Bailiffs and Wardens to Enforce the Salmon and Freshwater Fisheries Acts

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Powers of Water Bailiffs

1. Introduction

This booklet describes the powers of water bailiffs and wardens appointed to enforce the salmon and freshwater fisheries legislation in Scotland. The bailiffs appointed by Scottish Ministers now have the same powers as those appointed by District Salmon Fishery Boards, so the powers of both are described together in chapter 2. The wardens appointed in relation to Protection Orders have fewer powers and these are described in chapter 3. Some other officials, appointed in relation to specific aspects of the legislation, are referred to briefly in chapter 4.

2. This booklet is not an official interpretation of the legislation and it should not be quoted or used as authority for any particular power or provision. Where necessary, the statutory provisions should be referred to directly (they are identified in side notes). Most of the provisions have been consolidated in the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 but reference is made to some other Acts also.

3. For brevity, each Act will be referred to by the year of its enactment only, eg 2003 Act or 1984 Act; and any bare reference to a section is a reference to that section of the 2003 Act unless the context indicates otherwise. The full short titles of the Acts referred to in this way are:

Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 (asp 15)
Inshore Fishing (Scotland) Act 1984 (c.26)
Diseases of Fish Act 1983 (c.30)
Import of Live Fish (Scotland) Act 1978 (c.35)
Sea Fish (Conservation) Act 1967 (c.84)
Diseases of Fish Act 1937 (c.33)

Any reference to 'S.I.' or 'S.S.I.' is a reference to the Statutory Instrument or Scottish Statutory Instrument whose serial reference number is quoted.

344

2003 Act, s.69(1)

Definitions of fish

In most Scottish fisheries legislation, the meaning of the word 'salmon' includes sea trout. Similarly, in this booklet, any reference to salmon also includes sea trout unless the context clearly indicates that it does not. And the word 'trout', on its own, means brown trout only and, for example, does not include rainbow trout. Again as in the legislation, 'freshwater fish' means fish living in freshwater, including trout and eels but not salmon or any kind of fish which migrate between the open sea and tidal waters. The word 'fish', if unqualified, means any fish.

354

Tweed, Solway and Border Esk

Because of their position on the border with England, the River Tweed, the Border Esk and the Solway are specially provided for in the salmon and freshwater fisheries legislation.

364

Scotland Act 998, S.29(2)(a) & s.111

2003 Act, s.71(3)

The Tweed has long had its own Acts but, latterly, has been subject to most of the provisions in the general Scottish salmon fisheries legislation. However, as a consequence of devolution, the 2003 Act was enacted by the Scottish Parliament and its provisions could not apply to the non-Scottish parts of the Tweed. (Any legislation on salmon and freshwater fisheries that applies to the whole Tweed is made by Order-in-Council as provided for in the Scotland Act.) The 2003 Act does not apply in any part of the Tweed and this edition of the booklet is not relevant to the Tweed.

374

2003 Act, s.71(5)&(6)

SI 1999/1746 article 6(1)

The Solway has also long had its own special legislation but the provisions that are still relevant have been consolidated in the 2003 Act which, with one exception, applies to the whole of the Scottish waters of the Solway and to all the Scottish rivers running into it apart from the Border Esk (see para 8). The exception is that section 6 of the Act (fishing for salmon without permission) does not apply in that part of the Solway Firth from Sarkfoot downstream to a line between Arbigland and Skinburness. An equivalent offence for this part of the Solway is provided in the Border Rivers Order 1999 and is enforceable by water bailiffs appointed under the 2003 Act.

384

2003 Act, ss71(4)&(6)

The Border Esk upstream from the west bank of the River Sark at Sarkfoot, including all its tributaries, has been subject to the English salmon and freshwater fisheries legislation since 1865. The 2003 Act does not apply to it and water bailiffs appointed under the Scottish legislation have no powers there. The contents of this booklet are therefore not relevant to policing the Border Esk upstream from Sarkfoot.

394

Law Reform (Misc. Provs.) (Scotland) Act 1980, Sch.1, Pt. 1 Group B

Jury Service

Water bailiffs, whether appointed by a District Board or Scottish Ministers, may be "persons employed in any capacity by virtue of which they have the powers and privileges of police constables" and thus not be eligible for jury service. A water bailiff, if called on for jury service, should therefore draw the circumstances of his appointment to the attention of the Sheriff Clerk.

3104

Police & British Sea Fisheries Officers

Police officers also have wide powers to enforce the legislation and British Sea Fisheries Officers have some powers in relation to salmon fishing offences in the sea. The powers of these officers are not described in this booklet.

3114

Offences

An annotated list of offences is given in Appendix A. Some are expressed in terms which relate to the lawful methods of fishing; the definitions of these methods are further explained in Appendix B. There are two unusual offences of possession of salmon in suspicious circumstances; these are described in Appendix C.