Powers of Water Bailiffs
APPENDIX C: Sections 9, 20 & 59 of the 2003 Act
Sections 9 and 20 of the 2003 Act contain two offences of which a person can be charged, and eventually convicted, on a basis of suspicion that an illegal event had occurred or was about to occur. Such offences are unusual and there are important differences between these two: each is therefore separately described below. Section 59 of the Act may have an effect when a case under either section 9 or 20 (or s.16) comes to trial, it too is described.
Section 9 provides that if a person is found in possession of salmon or trout, or instruments or certain substances that could be used in taking salmon or trout, in circumstances which provide reasonable grounds for suspecting that the person had obtained them as a result of, or for the purpose of, committing an offence against sections 1, 2, 5, 6 or 7 of the Act, the person may be charged and convicted of unlawful possession of the articles. The section is in the same terms as its predecessor - section 7 of the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951 - and is thus liable to the same interpretation. The operation of section 7 was described in Aitcheson v Bartlett 1963. In the following adjusted excerpt from the judgement in that case, the references to the equivalent section numbers in the 2003 Act have been inserted for ease of current use (those substitutions are in italic):
Subsection 9(1) provides that if anyone is found in possession of any salmon [or trout or any instrument, explosive, poison or other noxious substance which could be used in the taking of salmon or trout], in circumstances which provide reasonable ground for suspecting that he has obtained the [article(s)] as a result of his committing an offence under sections 1, 2, 5, 6 or 7 of the 2003 Act, that person may be charged with unlawful possession of the [article(s)]. Subsection 9(2) entitles the court to convict that person of unlawful possession under section 9 if it is satisfied that the person charged under subsection 9(1) obtained the possession as a result of his having committed an offence against section 1, 2, 5, 6 or 7 of the Act. The scheme of the section is that subsection 9(1) entitles the Crown to bring the charge if the circumstances show the required reasonable suspicion. Subsection 9(2) deals with the position when the case comes to trial. The accused then has an opportunity of establishing that these suspicious circumstances have an innocent explanation. If he does not do so and the court is satisfied upon the evidence as a whole that he was in possession as a result of or for the purpose of committing any of the said offences, he may be convicted under section 9." (from Lord Justice General (Clyde)'s opinion in Aitcheson v Bartlett, 1963 JC 27, SLT 65)
The offence is limited to the person who is suspected of committing or intending to commit the illegal-fishing offence; it does not extend to any subsequent possessor. Section 9(3) provides that it is lawful to convict a person under the section on the evidence of one witness. However, although that may be sufficient, a water bailiff should collect as much corroborative evidence as possible to support the case.
Although it is an offence to fish for salmon without permission, the salmon itself, like other wild animals, belongs to no one until it is caught; and, once caught, belongs to the captor even if unlawfully taken. Since the unlawful taking of wild salmon is not theft, the subsequent receipt of such a fish (even knowing it to have been unlawfully taken) is not covered by the common law crime of reset. (In contrast, wild fish once caught, or salmon in a fish farm, can be truly stolen and could therefore subsequently become the subject of reset.) The precursor of section 20 was designed to fill the gap; the section provides a statutory offence of possessing salmon believing, or having reason to suspect, that the fish was illegally caught. It is roughly equivalent to reset.
Subsection 20(1) contains two alternatives:
- possession of salmon believing it to have been illegally taken, killed or landed; and
- possession of salmon in circumstances in which it would have been reasonable for the possessor to suspect that the salmon had been illegally taken, killed or landed.
In both cases it would be necessary to prove that the accused was in possession of the salmon. In addition, in the first case, the court would have to be satisfied that the accused did know or believe that the fish had been illegally taken. This alternative is to cover the situation where the accused has admitted the belief or knowledge (the simpler, but perhaps less likely, scenario).
In the second case, the court would have to be satisfied that the circumstances were such that it was reasonable that the accused should suspect that the fish had been illegally taken, killed or landed. The prosecution would not have to prove that the fish had been illegally taken, or that the accused did indeed suspect that this was so, but rather that, in all the circumstances, it was reasonable that the accused should have so suspected. The circumstances that would give rise to such a suspicion will, among other things, depend on who the possessor is; different people can be expected to have different knowledge of the signs that a fish might have been unlawfully taken. It is not sufficient that the water bailiff or policeman has good reason to suspect: the basis of the offence is circumstances that ought to have caused suspicion in the mind of the particular possessor.
Subsection 20(5) provides that the relevant illegal taking, killing or landing includes such offences whether in Scotland or in England and Wales, providing that, in this context, the offence is an offence under the law applying in the place where the salmon was taken, killed or landed. Thus, though a salmon caught by gill net in Scotland is associated with a relevant offence, one taken lawfully by gill net in England would not be, even if subsequently possessed in Scotland.
Subsection 20(3) provides that it is a defence to show that the salmon had not been unlawfully taken even if the circumstances should have given rise to suspicion that it had been. Some have read this provision as meaning that, in every case, the accused has to prove that the fish was lawfully taken if he or she wishes to escape conviction. That is not so: the accused person is presumed innocent at the outset of the trial, and the prosecution must prove both that that person was in possession of the salmon and should, in all the circumstances, have suspected (or believed) it to have been illegally taken, killed or landed. (The burden of proof in this statutory defence is governed by the terms of section 61 of the Act.)
As in the case of reset (where the thief cannot be convicted of receiving the stolen goods), a person cannot be convicted of the section 20 offence in respect of conduct which constitutes an offence of illegal fishing. (s. 20(6))
There is a saving proviso to protect water bailiffs, police and others who might possess illegally taken salmon in the course of preventing or detecting crime or in the investigation or treatment of disease. (s.20(6))
A person charged with the section 20 offence may be convicted on the evidence of a single witness. (s.20(4))
Section 59 provides that in any trial for an offence under section 9, 16, or 20, or under the law relating to reset, if the court is satisfied that the accused is not guilty of the offence charged but is guilty of another of those offences, then it may acquit the accused of the charged offence but find the person guilty of that other offence. The purpose of this unusual section is to prevent an accused, charged under section 20, from escaping conviction by accepting that he did indeed believe or suspect that the fish had been the subject of a crime (thus explaining the incriminating evidence), but claiming that he suspected that the fish had been stolen rather than illegally caught. However, this matter does not require the direct attention of a water bailiff: it would be for consideration by the prosecution authorities and the court when the case comes to a trial.