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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

3. Wardens

3324

2003 Act, s.48
s.12(1)
s.56
s.49

The 2003 Act provides that Scottish Ministers may make a Protection Order which prohibits fishing for freshwater fish in the waters to which the Order relates unless the fisherman has the legal right to fish there or has written permission from whoever does have that right. It is an offence to contravene such a prohibition. A water bailiff does not have power to police this provision but the Act provides that Scottish Ministers may appoint wardens to do so.

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s.49(1)
s.56

The wardens are nominated by the owners or occupiers of the freshwater fishing rights in the area of the Protection Order. The wardens have no powers in relation to other prohibitions or offences. Persons appointed as water bailiffs may, like anyone else, be nominated and appointed as a warden but, in policing the provisions of a Protection Order, their powers are limited to those of a warden.

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s.49(3)
s.50(1) (a)&(c)
s.50(4)

Extent of powers

The powers of a warden may be exercised in the area covered by the Protection Order in relation to which he or she is appointed. Some of the powers apply only in the vicinity of water ( see paragraph 38 below). Production by a warden of his or her letter of appointment is sufficient authority for the exercise of the powers conferred by it.

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s.49(2)( a)

Power of enquiry and to seize equipment

The main powers given to a warden by the Act are;

- to enquire as to the legal right or written permission of any person to fish in the area if there is reasonable cause to suspect that the person has no such right or permission; and to require the person to produce written evidence of such right or permission within 14 days;

s.49(2)(b)

- if there is reasonable cause to suspect that a person is fishing without legal right or permission, or is attempting or preparing to do so, the warden may seize any equipment used or calculated to be of use in the contravention of the prohibition.

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The power to enquire can be construed as allowing a warden to ask for proof of identity to help in any subsequent identification. The warden can also stipulate that the evidence of right or written permission to fish should be produced to whoever it is reasonable that such production is made, for example the warden himself or the proprietor or occupier of the fishings.

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s.56

Any equipment seized by the warden under section 49(2)(b) would be taken for the purpose of evidence but may also eventually be subject to forfeiture if the accused is convicted. The forfeiture provisions of section 60 of the 2003 Act do not apply, but this disapplication is without prejudice to the more general forfeiture provisions in Part II (Forfeiture of Property used in Crime) of the Proceeds of Crime (Scotland) Act 1995.

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s.50(1)(a)
s.50(1)(c)
s.50(1)(b)
s.50(5)

Power of entry

Wardens have the right to enter land in the vicinity of water for the purpose of exercising the powers outlined in paragraph 35 above or to prevent or detect persons fishing without right or permission. They may also enter land to fix copies of orders or notices. Land, in these contexts, does not include buildings on land.

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s.50(3)

Obstruction of a warden

Any person who wilfully obstructs or refuses to allow a warden to exercise his or her powers or rights is guilty of an offence.