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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 B: Definitions of fishing methods

The principal lawful methods of fishing for salmon are specified in section 1 of the 2003 Act: they are - rod and line; net and coble; and bag net, fly net or other stake net. Section 1 also provides for the lawful exercise of any existing rights to use a cruive and, in the Solway, a certificated fixed engine or a haaf net. The sea fisheries legislation prohibits the use of a gill net or a drift net for salmon fishing. The definition of each of these methods is described below.

Rod and line

For the purpose of the 2003 Act, the meaning of "rod and line" is defined in section 4:

" "rod and line" means single rod and line (used otherwise than as a set line or by way of pointing, or by striking or dragging for fish) with such bait or lure as is not prohibited by [section 4(2)] or, in relation to fishing for salmon, under section 33 or 38(5)(b)".

Of the various elements in this:

- the phrase single rod and line is originally derived from the 19th century prohibition against the use of double-line and cross-line fishing: it means that the bait or lure must be connected to only one line;

- the exceptions noted in parenthesis specifically exclude some modes of fishing that were found to be unlawful before the passing of the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951 and were the subject of a general provision in that Act: - in this context, the words set line means a rod and line that is fixed in some way; pointing means use of a rod with a hook attached at its point; and striking or dragging refers to other techniques used in foul-hooking;

- the baits and lures expressly prohibited by section 4(2) are fish roe, fire and light; and

- the reference to baits or lures prohibited under section 33 or 38(5)(b) covers any regulations, made under those sections, that prohibit the use of some baits or lures for salmon fishing in particular areas at specified times.

This definition (except the final element) applies to fishing for trout and other freshwater fish as well as salmon.

Net and coble

"Net and coble" is not defined in the 2003 Act. The words have long been used to describe the lawful method of fishing for salmon by net in Scottish rivers: the details of what was or was not allowed in that method were defined by decisions of the courts over many years. However, since 1993, there has been a power to make regulations defining what "fishing for or taking salmon by net and coble" means, and such a regulation has been made. It was made under the direct precursor to section 31(4)(a) of the 2003 Act and continues to have effect as if made under that section. The regulation provides that:

"fishing for or taking salmon by net and coble means the use of a sweep net, paid out from a boat, and worked from the bank or shore or from waters adjacent to the bank or shore, whereby the salmon are surrounded by the net and drawn to the bank or shore, provided that -

(i) the net or any warps are not made or held stationary, nor allowed to drift with the current or tide, but are both paid out and hauled in as quickly as practicable and kept in unchecked motion by and under the effectual command and control of the fisherman for the purpose of enclosing the salmon within the sweep of the net and drawing them to the bank or shore;

(ii) no stakes, dykes, other obstructive devices or other nets are used in association with the net;

(iii) the water is not disturbed by throwing stones or other objects or splashing or other activity in order to drive salmon into the area to be swept by the net;

(iv) the net shall not come within 50 metres of any other such net already being paid out or hauled, until the last mentioned net has been hauled in to the bank or shore; and

(v) the net is not designed or constructed for the purpose of catching fish by enmeshing them".

Regulation 2(a) of the Salmon (Definition of Methods of Net Fishing and Construction of Nets) (Scotland) Regulations 1992 (S.I. 1992/1974 as amended by S.I.s 1993/257 and 1994/111)

Bag net, fly net or other stake net

"Bag net, fly net or other stake net" is not defined in the 2003 Act but, under section 34(1)(b), Scottish Ministers may make regulations defining what is meant by fishing for or taking salmon by bag net etc. A regulation defining this was made under the immediate precursor to section 34(1)(b) and it continues to have effect as if made under section 34. The regulation provides that:

"fishing for or taking salmon by bag net, fly net or other stake net means the use of a fish trap (including the use of a landing net to remove salmon from such a trap) consisting of one or more fish courts and associated inscales and wings, together with a leader net designed to lead the salmon into the trap; the whole of which is fixed or moored to the shore or sea bed; provided that -

(i) no part of the bag net, fly net or other stake net, except mooring warps and anchors, shall extend seawards beyond 1300 metres from the mean low water mark: and

(ii) no part of the net or trap is designed or constructed for the purpose of catching fish by enmeshing them".

Regulation 2(b) of the Salmon (Definition of Methods of Net Fishing and Construction of Nets) (Scotland) Regulations 1992 (S.I. 1992/74 as amended by S.I.s 1993/257 and 1994/111)

Cruive

A cruive is a sort of fish trap set in a weir across a river. No grant of a right to use a cruive has been made for a long time and, though some rights exist, none has been exercised recently. "Cruive" is not defined in the 2003 Act but, under section 31(1)(b), Scottish Ministers may make regulations governing the construction and use of cruives. Cruive regulations were made in 1865 under a precursor of section 31(1); they were reproduced as schedule F to the Salmon Fisheries (Scotland) Act 1868 and continue to have effect as if made under the 2003 Act. Section 1(4) of the Act provides that a right to use a cruive may only be exercised if the right was in existence before 10th May 1951; and also that, if a question arises in any proceedings as to whether someone is entitled to use a cruive, it is for that person to show that he or she is so entitled, or has permission from someone who is.

Certificated fixed engine

In Scotland, certificated fixed engines are unique to the Solway (which for this purpose extends as far west as the Mull of Galloway). They are defined in section 1(5) of the 2003 Act:

" "certificated fixed engine" means a fixed engine certificated as privileged under section 5 of the Solway Salmon Fisheries Commissioners [(Scotland)] Act 1877 (c.ccxl)".

Section 1(5) also provides that if a question arises in any proceedings as to whether a fixed engine is certificated, it is for the user to show that it is. Each certificate describes the form and dimensions of the authorised fixed engine and includes a site plan. Various stake nets, bag nets, poke nets and yairs were certificated.

Haaf net

The haaf nets are also unique to the Solway; they are partially framed bag-shaped nets which are usually held against the flow of the tide until a salmon enters, whereupon the nets-man lifts the net to trap the fish in the bag of netting. The method is not defined in the 2003 Act but, under section 31(4)(c), Scottish Ministers may make regulations defining it. No regulations have been made and, unless they are, "haaf net" takes its ordinary meaning in the context of lawful salmon fishing in the Solway. Section 1(5)(b) of the Act provides that a right to use a haaf net may only be exercised at any place if the right was in existence before 10th May 1951 and also that, if a question arises in any proceedings as to whether someone is entitled to use a haaf net, it is for that person to show that he or she is so entitled, or has permission from someone who is.

Gill net

Fishing from boats for salmon in the sea using a gill net was prohibited in 1975. The prohibiting Order defines a gill net as:

"any length of net being a net designed for the purpose of catching fish by enmeshing them".

Salmon and Migratory Trout (Prohibition of Fishing) (No. 2) Order 1972, (S.I. 1973/207 as amended by S.I.s 1975/844 & 1983/60)

The further Order banning the use of gill nets for salmon fishing within half a mile of the shore (whether or not set from a boat) includes a more elaborate definition. It is

"any net designed or set for the purpose of catching fish by enmeshing them, whether or not the net is set on its own or attached to, or part of, other fishing equipment"...

Inshore Fishing (Salmon and Migratory Trout) (Prohibition of Gill Nets) (Scotland) Order 1986, (S.I. 1986/59)

Drift net

The use of drift nets in fishing for salmon at sea was banned in 1962. This prohibition has to some extent been superseded by the ban on the use of any enmeshing net (see under 'Gill net' above) but it still exists and includes a definition of "drift net". It is:

"any length of net allowed to float or drift being either attached to or released from a fishing boat and not being a length of net attached to or held on the shore".

Salmon and Migratory Trout (Prohibition of Fishing) (No. 2) Order 1972, (S.I. 1973/207 as amended by S.I.s 1975/844 & 1983/60)