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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

APPENDIX A: ANNOTATED LIST OF OFFENCES

This appendix provides an annotated list of the offences under the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 as at the coming-into-force of the Act. It also includes offences under the Import of Live Fish (Scotland) Act 1978 and salmon-related offences under the sea fisheries Acts as at 1st January 2004. The abbreviations used, and the definitions, are the same as in the main text - see paragraphs 3 and 4. The list does not include offences under the legislation on fish health and disease.

Scientific and other exemptions

Section 27 of the 2003 Act provides that there is no contravention of an enactment relating to salmon or salmon eggs when the purpose is scientific or for the protection, improvement or development of stocks of fish or for the conservation of any creature or living thing, provided that permission has been obtained from the Scottish Ministers. Under section 29 of the Act, the Ministers may also, in some other circumstances, permit otherwise illegal acts relating to fishing for or taking salmon. Both sections are in general terms and apply to all such enactments; they are therefore not included in the notes cited against each offence in the list that follows.

Section 27 also allows a District Salmon Fishery Board to permit exemption from some offences relating to salmon; and, under section 28, Scottish Ministers may permit exemption from some offences in relation to fish other than salmon. Each of these provisions relates to specified offences and, where they apply, each is noted against the relevant offence in the list. Section 30 provides for some exemptions and statutory defences in relation to fish farming and farmed fish; these too are noted against the relevant offences.

Offences by corporate bodies

Section 57 of the 2003 Act provides that if it is proved that an offence against the Act by a body corporate was committed with the consent or connivance of, or due to the neglect of, of a director, manager, secretary etc of the body, then that person, as well as the body, shall be guilty of the offence. This applies to every offence under the 2003 Act and the provision is therefore not cited in the notes marked against the individual offences.

Table and notes

Caveat This list and the notes are intended as a checklist and indication of the offences and related provisions. They are not a substitute for direct reference to the statutory provisions.

Brief description of the offence

Provisioncreating theoffence

Notes

Fishing by a prohibited method

Fishing for salmon in inland waters other than by rod and line or net and coble or - in certain circumstances - cruive, haaf net or certificated fixed engine

2003 Act s.1(1)

1, 2, 4, 5, 6, 7

Fishing for salmon in the sea other than by rod and line, net and coble or bag net, fly net or other stake net

s.1(2)

2, 4, 5, 6, 7, 8, 9

Fishing for freshwater fish in inland waters other than by rod and line

s.2

3, 4, 5, 6, 7,
10, 11

Fishing contrary to ss.1, 2 or 6 of the 2003 Act by two or more persons acting together

s.7

12

Use of explosives with intent to take or destroy fish

s.5(1)(a)

3, 4, 13

Use of poisons or noxious substances with intent to take or destroy fish

s.5(1)(b)

3, 4, 13, 14

Use of an electrical device with intent to stun or destroy fish

s.5(1)(c)

2, 3, 4, 13, 14

Fishing for salmon from a boat in the sea by drift net or other gill net, trawl net, seine net (other than fishing from the shore by net and coble), troll or long-line

1967 Act s.5 & S.I. 1973/207, as varied by S.I. 1983/60

15, 16

Fishing for salmon in the sea with any gill net within half a mile of the shore

1984 Act, s.1 & S.I. 1986/59

17

Fishing for salmon with net of mesh size less than 90mm (stretched mesh)

2003 Act, s.31(1) (d) & (7) & S.I. 1992/1974, reg 6

6

Fishing for salmon with a net of twine less than 0.9mm thick

ditto reg. 8A

6, 18

Use of monofilament netting in the construction of nets used in fishing for salmon

ditto reg 8

6

Taking any salmon in its passage through a fish pass

2003 Act, s.10(1)

23

Fishing without permission

Fishing for salmon without legal right or written permission

s.6(1)

4, 19

Fishing without legal right or permission in a loch or stank owned by one person

s.11

20

Fishing for freshwater fish without legal right or written permission in contravention of a prohibition in a Protection Order

ss.12 & 48(2)(b)

4, 21

Annual close time

Fishing for salmon during the annual close time other than by rod and line

s.14(1) & (2)

6, 23

Fishing for salmon during the annual close time by rod and line except as allowed for by byelaw or regulation

s.14(1) & (2)

6, 23, 24

Failure to remove boats, nets and other fishing tackle from a salmon fishery within 36 hours of start of the annual close time

s.15

6, 23, 25

Fishing for or taking trout during the annual close time for trout

s.17(2)(a)

6, 28

for sale etc and possession during the annual close time see under Sale, purchase and possession

Weekly close time

Fishing for or taking salmon on a Sunday

s.13(2)

6, 23

Fishing for or taking salmon during the weekly close time other than by rod and line

s.13(3)

6, 23, 29

Failure to comply with byelaws or regulations on the observance of the weekly close time for salmon fishing

s.31(6)&(7)

6, 30

Unseasonable salmon

Taking, fishing for, buying, selling etc or possessing unclean or unseasonable salmon

s.18(1)

2, 6, 23, 31

Sale, purchase and possession

Possession, sale etc of unclean or unseasonable salmon

18(1)(b)

2, 6, 23, 31

Possession, sale etc of salmon roe

19(1)

2, 23, 32, 44

Sale of rod-caught salmon

s.38 & S.S.I. 2002/418

23

Buying, selling or having in possession salmon during the period when the annual close time is in force in every salmon fishery district

s.16

6, 23, 26, 27, 43, 44

Purchase or sale of trout less than 20 cm long

s.22(1)(a)

6, 33, 43

Purchase or sale of trout between 1 Sept and 31 March

s.22(1)(b)

6, 33, 43

Possession of trout during the annual close time for trout

s.17(2)(b)

6, 28, 43

Consigning salmon or trout in an unmarked package

s.21

[There is an enabling provision to establish a salmon dealer licensing scheme with offences (none established at 30/11/03)]

s.65

Possession of salmon, trout or certain articles in circumstances where the possessor is suspect-ed of having taken the fish or having used (or being about to use) the articles unlawfully

s.9

34

Possession of salmon believing or having reason to suspect that it had been illegally taken

s.20

34

Obstruction etc of salmon

Preventing the passage of salmon through a fish pass

s.10(1)

23

Failure to comply with regulations on fish passes and screens at dams and intakes

s.31 & S.I. 1994/2524

23

Failure to comply with byelaws or regulations relating to cruives

s.31

23, 35

Obstructing the passage of salmon to spawning grounds during the annual close time

s.23(3)

2, 23, 36

Use of any device to obstruct the passage of young salmon

s.23(1)

2, 23, 36

Young salmon & spawning beds

Knowingly taking, destroying or injuring, or buying, selling or possessing, young salmon

s.23(1)

2, 23, 36

Knowingly injuring or disturbing salmon spawn or spawning beds

s.23(2)

2, 23, 36

Introduction and keeping of fish

Import, keeping or release of fish designated under the 1978 Act except in accordance with the provisions of that Act

1978 Act, s.3

37

Introduction of salmon in inland waters without the consent of the District Board

2003 Act, s.24

38

Solway Firth

Use of an uncertificated fixed engine in the Solway Firth

s.25

5, 39

Fishing without legal right or permission for any fish other than salmon in the rivers running into the Solway Firth (except the Annan)

s.26

39

Obstruction of officers

Obstruction of a constable or water bailiff in the exercise of the powers conferred on them by the 2003 Act

s.58

Obstruction of a warden in the exercise the powers conferred by sections 49 and 50

s.50(3)(a)

Obstruction of any person appointed by Scottish Ministers under s.50(2) in the exercise of the powers conferred by that subsection

s.50(3)(b)

Obstruction of any person authorised under s.21(6) in the exercise of powers conferred by that section

s.21(5)

Miscellaneous other offences

Unauthorised removal of dead salmon or trout from the water

s.8

4, 19

Contravention of any regulation made under s.31(1)

s.31(7)

23, 40, 45

Contravention of any regulation made under s.38

s.38(7)

23, 40

Failure of a proprietor or occupier to provide such information or statistics, or to allow such access to a fishery, as may be required under s.64

s.64(2)

Carriage of monofilament gillnet of mesh size of less than 250mm in any British fishing boat

1984 Act, s.2 & S.I. 1996/1907

41,42

Fishing with trawls or other moving gear within half a mile of a fixed salmon net

1984 Act, s.3

42

Landing of salmon caught in contravention of an order made under the 1967 Act

1967 Act s.6 & S.I. 1972/1966,as varied by S.I. 1983/58

NOTES on the table of offences

NB - see also the general introductory notes

1 The right to use a cruive or a haaf net depends on the right having existed before 10 May 1951; and the burden of proving the existence of such a right, or proving that a fixed engine is certificated, rests on the user. (s.1(4) & (5))

2 There is an exception for scientific purposes, and some other purposes, in relation to salmon with the written permission of the District Salmon Fishery Board. (s.27(1) & (2))

3 Exception for scientific purposes, and some other purposes, in relation to freshwater fish other than salmon with the written permission of Scottish Ministers. (s.28(1) & (2))

4 An attempt at, or an act preparatory to, committing the offence is itself an offence. (provision within the section)

5 See Appendix B for definition of fishing methods.

6 Exception for fish farming operations in a fish farm; in this context the meaning of 'fish farm' is as defined in the Diseases of Fish Act 1937. (2003 Act ss.30(1) & 69(1))

7 It is permitted to use a gaff, tailer or landing net as an auxiliary to taking fish by rod and line. (s.3)

8 Applies within the area of salmon fishery districts which, depending on when made, usually extends seawards 5 kilometres or 3 miles from low water mark. (s.34 and any relevant byelaw or designation order)

9 The definition of bag net, fly net or other stake net allows the use of a landing net to remove fish from them. ( see Appendix B)

10 If all the proprietors of a pond or loch are so agreed, any of them may fish by net. (s.2(3))

11 An owner or occupier of the fishing right may fish for freshwater fish other than trout by net or trap. (s.2(4))

12 This provision provides for enhanced penalties for proven 'gang' poaching.

13 Applies in the sea up to 22 km from baselines. (s.5(1))

14 Scottish Ministers may permit exceptions to the offence for fish farming operations in a fish farm; for this purpose a fish farm is as defined in the 1937 Act. (s.30(1) & (2))

15 Applies in the sea up to 12 nautical miles from baselines. (S.I. 1973/207)

16 Exception for fishing operations under the authority of Scottish Ministers for scientific investigation or the transport of fish. (1967 Act, s.9)

17 This offence is overlapped by the more recent provision on lawful methods in section 1 of the 2003 Act.

18 Does not apply to a poke net. (S.I. 1974/201, reg. 8A(4)) (Some poke nets are certificated for use at specific sites in the Solway.)

19 Applies in inland waters and the sea up to 1.5 kilometres seaward from mean low water springs.

20 [This offence is derived from the fish part of the Theft Act 1607 (c.6).]

21 The offence applies in the inland waters of the area of a Protection Order but, for this provision, the meaning of 'inland waters' excludes the tidal parts of rivers. (s.48(12))

22 The close time is set by byelaw or regulation and varies between districts. (A list of current dates is available from the Scottish Executive, Environment and Rural Affairs Department.)

23 A person who commits this offence can be convicted on the evidence of one witness. (provision within the section)

24 The extensions of time for fishing by rod and line are set by byelaw or regulation. (A list of the current dates is available from the Scottish Executive, Environment and Rural Affairs Department.)

25 Does not apply to any ferry boat or, in some circumstances, to a boat used by the owner, or family of owner, of the land; and does not apply to the pins of fly nets or other stake nets, fastenings in rock for bag nets or the pins and poles of certificated fixed engines (s.15(5)). And there is a defence in relation to boats necessary for the operation of a fish farm (s.30(4)); the burden of proof in relation to this defence is governed by the terms of section 61.

26 For the purpose of this offence, the Scottish fishery districts include the district of the River Tweed. (s.16(1))

27 There is a statutory defence if the accused can prove that the fish was caught lawfully. (s.16(2)

28 It is provided that it shall not be an offence if the fish are taken for scientific or breeding purposes or for transferring alive to other waters. (s.17(3))

29 The weekly close time is 6pm on Friday to 6am on Monday but may be modified by regulation. (ss.13(1) and 31(5))

30 The current (30/11/03) provisions are byelaws which were made under section 6 of the Salmon Fisheries (Scotland) Act 1862 and reproduced as schedule D of the Salmon Fisheries (Scotland) Act 1868. By reason of the law on the interpretation of statutes, these byelaws are treated as being included in the reference to regulations made under section 31(1) of the 2003 Act.

31 This offence is independent of the close-time offence. Unclean salmon are those that have spawned and not yet recovered from spawning; unseasonable salmon are gravid fish on the eve of spawning. (Brady v Barbour, High court 13/1/95 - 1995 SLT 920 & 1995 SCCR 258)

32 There is an exemption for possession (but not buying or selling) if the possessor can satisfy the court as to the reason for the possession; and it is a defence for the possessor to prove that the roe was, or was reasonably thought by him to be, produced by a fish farm (s.19(2)&(3)). The burden of proof in relation to the statutory defence is governed by the terms of section 61.

33 Does not apply to live trout disposed of for the purpose of stocking waters or for artificial propagation. (s.22(2))

34 See extended note in Appendix C.

35 The current (30/11/03) provisions are byelaws which were made under section 6(6) of the Salmon Fisheries (Scotland) Act 1862 and were reproduced as schedule F of the Salmon Fisheries (Scotland) Act 1868. By reason of the law on the interpretation of statutes, these bylaws are treated as being included in the reference to regulations made under section 31(1) of the 2003 Act.

36 There is an exception for the purpose of cleaning or repairing any dam or mill lade or work done in the exercise of rights of property in the bed of a river. (s.23(4))

37 A list of the species covered by an order under this provision can be obtained from the Scottish Executive, Environment and Rural Affairs Department.

38 Does not apply in districts where there is no district board nor in fish farms. (s.24(2)(b))

39 For the purpose of this provision, the Solway Firth extends seawards to a line drawn between the Mull of Galloway and Hodbarrow Point in Cumbria. (s.69(1))

40 Under the law on the interpretation of statutes, any reference to regulations made under s.31 or 38 includes instruments made under the direct predecessors of the section referred to.

41 This provision is to assist in the control of illegal salmon fishing but salmon are not mentioned in the regulations; it applies to all British fishing boats within the 6-mile limit.

42 Enforcement is by British Sea Fisheries Officers, not by water bailiffs.

43 It is a defence for the possessor to show that that he or she reasonably believed that the fish was produced by fish farming (s.30(5)); for this purpose, 'fish farming' is defined in section 30(6).

44 For this section, the burden of proof in relation to the statutory defence is governed by the terms of section 61.

45 For regulations made under s.31(1)(a) & (d) there is an exemption in relation to fish-farming operations in a fish farm.