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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord JohnstonLord Reed C.G.B. Nicholson,
C.B.E., Q.C. |
[2008] HCJAC31Appeal No: XJ1091/06OPINION OF THE COURT delivered by LORD REED in APPEAL BY STATED CASE by AUSTEN JAMES HASTINGS
BROWN Appellant; against THE PROCURATOR FISCAL,
OBAN Respondent: _______ |
Act: Summers; Mackinnons, Solicitors,
Alt: Mackay, A.D.; Crown Agent
Introduction
[1] The appellant was charged on summary
complaint with four contraventions of section 4(6) of the Sea Fish
(Conservation) Act 1967 as amended ("the 1967 Act"). Charge 1 was in the following terms:
"On 22 February 2005 at Ardrossan
Harbour, Ardrossan and elsewhere meantime unknown to the complainer you AUSTEN
JAMES HASTINGS BROWN, were the Master and owner of the ASHRONA, being a vessel
to which the aftermentioned Order and Act applies, in respect of which there
was a contravention and a failure to comply with a condition of the fishing
vessel licence relating to said fishing vessel, namely Designated Landing Port
condition as specified in conditions 10 and 11 of said licence in that you did
fail to advise the UK Fisheries Call Centre that you intended to enter a non-designated
port to land your catch and fail to advise the said Call Centre that you had
retained on board in excess of one tonne of TAC species on board said
vessel; CONTRARY to Article 3 of the Sea
Fish Licencing Order 1992 and Section 4(6) of the Sea Fish (Conservation)
Act 1967 as amended".
The remaining charges concerned other dates during February
and March 2005, and other ports, but were otherwise in similar terms. The relevant facts were not in dispute. The question was whether, on the undisputed
facts, the appellant had committed the offences charged. The Sheriff repelled a submission of no case
to answer and proceeded to convict the appellant. The issue before us at present is whether he
was entitled to do so.
[2] It is not in
dispute that the appellant is the master and owner of the vessel in
question. The licence relating to the
vessel contains, in particular, the following conditions:
"Landing Requirements for All
Stocks
10.1 This
condition applies to any vessel with an overall length of 15 metres or
more.........
10.2 Except
as provided for in Condition 11, landings of sea fish shall be made only:
(a) at
one of the designated ports listed in column 1 of the table below; and
(b) where
appropriate at the designated location within the port, specified in column 3
of that table.
When entering any designated port,
vessels must arrive within the designated times listed in column 2 of the
table.
[There follows the table referred to]
11.1 The
provisions of this paragraph apply to all vessels which:
(a) have
an overall length of 15 metres or more; and
(b) have
more than one tonne, live weight, in total on board of species for which a TAC
has been set; and
(c) intend
to arrive at a port, other than a designated port, or intend to arrive at a
designated port outside designated times and locations;
..........
Notification of the following
information shall be given to the Fisheries Departments' UK Call Centre by one
of the following means:
By telephone or marine radio ......;
By fax ........;
By e-mail .......
(i) name
of the person making the call;
(ii) the
name and registered number of the vessel for which authority to arrive in port
is sought;
(iii) the
port or location at which the vessel is to arrive;
(iv) the
intended date and time (
(v)
details
of the catch on board by species in kilogrammes, live weight.
Such notifications shall be given at
any time between:
(1) 4
and 24 hours prior to arrival in port where arrival will occur between 0001
hours on Tuesday and 2359 hours on Saturday;
and
(2) 4
and 72 hours prior to arrival in port where arrival will occur between 0001
hours on Sunday and 2359 hours on Monday.
.........
11.2 When
all the information has been provided in accordance with paragraph 11.1
above, by telephone or marine radio, an authorisation number will be issued by
the Fisheries Departments' UK Call Centre, along with the recorded time of the
authorisation and confirmation of the date and time after which the vessel may
arrive at the nominated port or location.
This information must be recorded in the comments section of the EC
Logsheet(s) relating to the sea fish, before arrival in port.........
11.3 When
all the information has been provided in accordance with paragraph 11.1
above, by fax or e-mail, details of the authorisation number, along with the
recorded time of the authorisation and confirmation of the date and time after
which the vessel may arrive at the nominated port or location, will not
automatically be transmitted to the vessel, by the Fisheries Departments' UK
Call Centre. Further contact must be
made with the Call Centre, by telephone or marine radio, to obtain the
authorisation number and authorised date and time of arrival in port, which
must then be recorded in the comments section of the EC Logsheet(s), relating
to the sea fish, before arrival in port......
11.4 Following
the issue of an authorisation referred to above, the vessel must arrive at the
nominated port or location within a period of 4 hours, commencing from the date
and time as confirmed in accordance with paragraph 11.2 or 11.3 above.
11.5 If,
following the issue of an authorisation number, it is not possible to arrive at
the nominated port or location within the time period specified in
paragraph 11.4, authorisation to amend that period must be sought from the
Fisheries Departments' UK Call Centre........
11.6 After
the authorisation number and confirmation of the date and time of arrival has
been issued, the vessel may go to another port or location. If that port, location of landing, or time of
arrival are not all designated in the table at paragraph 10.2 above, a further
authorisation number must be obtained from the Fisheries Departments' UK Call
Centre by making a notification in accordance with paragraph 11.1. This information must be recorded in the
comments section of the EC Logsheet(s) (where applicable) relating to the sea
fish, before the arrival of the vessel in port.
11.7 The
vessel may not commence landing sea fish, at the port or location communicated
in terms of paragraph 11.1, any earlier than 4 hours from the time that
the notification, made under paragraph 11.1, 11.5 or 11.6, is recorded as
having been received by the UK Call Centre, whichever is the later, unless
otherwise authorised by a British sea-fishery officer.
12. This
condition applies to all vessels with an overall length of 10 metres or
more, landing sea fish at a designated port.
Prior to commencing landing, the original (white) copy of the EC
Logsheet(s), completed in accordance with Commission Regulation (EEC) No.
2807/83 relating to the sea fish, shall be deposited in the box marked for this
purpose and located in the port of landing, as specified in column 4 of the
table above, unless it has been handed to a British sea-fishery officer. Logsheets submitted in this way shall be
deemed to have been submitted in compliance with Commission Regulation (EEC)
No. 2807/83".
[3] It is common
ground that the appellant's vessel has an overall length of more than
15 metres. It is therefore a vessel
to which Condition 10 applied.
Condition 10.2 imposed a requirement, "except as provided for in
Condition 11", to land sea fish (of whatever species, and in whatever
quantities) only at a designated port, and at any designated location within
such a port, and to arrive at the designated port within designated times. It is not in dispute that, on each of the
occasions in question, the vessel landed its catch at a non-designated
port. It follows that the appellant
failed to comply with Condition 10, and was therefore guilty of an offence
under section 4(6) of the 1967 Act (in terms of which a failure to comply
with a condition of such a licence constitutes an offence), unless
Condition 11 was applicable and was complied with.
[4] Both before
the Sheriff and before this Court, the argument presented on behalf of the
appellant was that Condition 11 was inapplicable, since on the occasions
in question the appellant did not have on board more than one tonne of "species
for which a TAC has been set", as required by Condition 11.1(b). It was contended that, if Condition 11 was inapplicable, it
followed that the appellant had been entitled to land his catch at a
non-designated port without notifying the UK Fisheries' Call Centre, as he had
done. In response, counsel for the
respondent disputed the appellant's interpretation of Condition 11.1(b).
[5] For the
reasons we have explained, the appellant was bound to comply with
Condition 10, unless Condition 11 was applicable and was complied
with. It is apparent that the appellant
did not comply with Condition 10.
In these circumstances, whether Condition 11 was inapplicable, as
the appellant contends, or was applicable but was not complied with, as the
respondent contends, the appellant was in either event in breach of what the
charges describe as
"a condition of the fishing vessel
licence relating to said fishing vessel, namely
The applicability of Condition 11 is relevant only to the
specification of the mode of the offence:
"....in that you did fail to advise the
said Call Centre that you intended to enter a non-designated port to land your
catch and fail to advise the said Call Centre that you had retained on board in
excess of one tonne of TAC species on board said vessel .....".
That is therefore the context in which the question as to the
interpretation of Condition 11.1(b) arises.
The question of
interpretation
[6] As we have
explained, it is common ground that the appellant's vessel has an overall
length of more than 15 metres and that on each of the occasions in question it
landed its catch at a non-designated port without notifying the Fisheries
Department. The weight and composition
of the catch are also not in dispute.
The question is whether, on the undisputed facts, the vessel had on
board more than one tonne of "species for which a TAC has been set", within the
meaning of Condition 11.1(b).
Stating broadly, at this stage, matters which are explained in greater
detail below, a total allowable catch (or TAC) is fixed under Community law for
a species of fish in respect of a specified geographical area. The TAC is divided between Member States,
each of which has a national quota. A
TAC may be set for a species in respect of one area but not in respect of
another. If fish are caught in an area
where the species in question is subject to a TAC, the catch counts towards the
national quota of the Member State whose flag the vessel flies; and the landing of fish in excess of quota is
prohibited by Community law. If, on the
other hand, fish of the same species are caught in an area where the species is
not subject to a TAC, the catch does not count towards the quota, and its
landing is not prohibited by Community law.
[7] Against that
background, the primary contention of the appellant is that Condition 11.1(b)
should be interpreted as referring to fish which have been caught in an area
where that species is subject to a TAC, and which therefore count towards the
quota, and not as referring to all fish belonging to a species for which a TAC
has been set regardless of where they have been caught. In effect, the appellant contends that
Condition 11.1(b) should be construed as if it read:
"..... have more than one tonne, live
weight, in total on board of species for which a TAC has been set and which have been caught in an area in respect
of which a TAC has been set for that species".
In support of that contention, it was argued that a literal
construction of the phrase in question would have no rationale in terms of the
relevant EC legislation. It was not
however suggested that, so construed, the condition would be unreasonable in a Wednesbury sense or ultra vires (cf. Colley v
Duthie 1993 S.C.C.R.737). Nor was it argued that the condition lacked
legal certainty (cf. R v Bossom [2006] 4 All E.R.995). On behalf of the respondent, on the other
hand, it was argued that Condition 11.1(b) should be read literally and
without qualification. It was submitted
that, in addition to the enforcement of quotas, there might be a wider interest
in monitoring generally catches of species for which a TAC had been set
elsewhere.
[8] A further
contention on behalf of the appellant was that one of the species on board on
the occasions in question, namely ling, was not a "species for which a TAC has
been set" within the meaning of Condition 11.1(b). That contention was based on the terms of the
relevant EC legislation, which is discussed below.
Community Law
[9] Community law
in relation to fisheries is highly complex.
For the purposes of the present case, however, it is necessary to refer
only to a small number of provisions.
Regulation 2371/2002
[10] One aspect of
the Common Fisheries Policy is a conservation policy to ensure that fish stocks
are not exhausted through unlimited fishing.
The principal Regulation in relation to that policy is Regulation (EC)
No. 2371/2002 on the conservation and sustainable exploitation of fisheries
resources under the Common Fisheries Policy.
That Regulation, and the other EC legislation to which we have to refer,
has undergone frequent amendment: we
refer to all the legislation in question as it stood at the time of the events
with which we are concerned.
[11] Article 4 of
Regulation 2371/2002 requires the Council to adopt the measures necessary to
ensure the sustainable pursuit of fishing activities. In terms of Article 4(2) such measures
may in particular include
".....measures for each stock or group
of stocks to limit fishing mortality and the environmental impact of fishing
activities by:
.......
(d) limiting
catches".
The term "stock" is defined by Article 3 as meaning "a living
aquatic resource that occurs in a given management area"; and the expression "living aquatic resource"
is defined, put shortly, as meaning a marine species.
[12] Article 20
requires the Council to decide on "catch and/or fishing effort limits and on
the allocation of fishing opportunities among Member States". Each
[13] Provision in
relation to control and enforcement by Member States is made by
Articles 23 and 24:
"Article
23
Responsibilities of Member States
1. Unless
otherwise provided for in Community law, Member States shall ensure effective
control, inspection and enforcement of the rules of the Common Fisheries
Policy.
2. Member
States shall control the activities carried out within the scope of the Common
Fisheries Policy on their territory or in the waters subject to their
sovereignty or jurisdiction....They shall be responsible for placing observers on
board fishing vessels and for taking appropriate decisions, including the
prohibition of fishing activities.
3. Member
States shall adopt the measure, allocate the financial and human resources and
set up the administrative and technical structure necessary for ensuring
effective control, inspection and enforcement, including satellite based
monitoring systems.....
.....
Article 24
Inspection and enforcement
Member States shall take the
inspection and enforcement measures necessary to ensure compliance with the
rules of the Common Fisheries Policy on their territory or in the waters
subject to their sovereignty or jurisdiction.
They shall also take enforcement measures relating to the fishing
activities outside Community waters of Community fishing vessels flying their
flag and of their nationals.
Such measures shall include:
(a) Spot
checks and inspections on fishing vessels, the premises of businesses and other
bodies with activities relating to the Common Fisheries Policy;
(b) sightings
of fishing vessels ......"
Regulation 27/2005
[14] Pursuant to
Articles 4 and 20 of Regulation 2371/2002, the Council adopted Regulation
(EC) No. 27/2005, fixing the fishing opportunities for 2005. Article 5(1) provided:
"Fishing opportunities for Community
vessels in Community waters or in certain non-Community waters and the
allocation of such fishing opportunities among Member States shall be as set
out in Annex 1".
The expression "fishing opportunities" was defined for the
purposes of the Regulation, by Article 3, as meaning:
"(i) total
allowable catches ('TACs') or the number of vessels authorised to fish and/or
the duration of these authorisations;
(ii) shares
of the TACs available to the Community;
(iii) quotas
allocated to the Community in third country waters;
(iv) allocation
of Community fishing opportunities under (ii) and (iii) to Member States in the
form of quotas;
(v) allocation
to third countries of quotas to be fished in Community waters".
The species for which TACs and quotas were fixed were listed
in Annex 1. The quotas and TACs in
respect of the relevant species and areas were specified in Annexes 1A to
1F. In particular, Annex 1B specified
the fishing opportunities in respect of waters which included ICES areas VIa
(West of Scotland) and VIIa (
[15] Annex 1B fixed
a TAC, and a
[16] Article 8(1)
of Regulation 27/2005 provided that fish from stocks for which fishing
opportunities were fixed were not to be retained on board or landed unless
"the catches have been taken by vessels
of a
Article 8(2) provided that, subject to exceptions which are
immaterial to the present case, all landings were to count against the quota.
Regulation 2847/93
[17] The principal
Regulation in relation to the monitoring and enforcement of the Common
Fisheries Policy is Regulation (EEC) No. 2847/93 establishing a control system
applicable to the Common Fisheries Policy.
[18] Articles 2 to
5 require Member States to carry out monitoring, inspection and
surveillance. In particular, Article
2(1) provides:
"In order to ensure compliance with
all the rules in force, each Member State within its territory and within
maritime waters subject to its sovereignty or jurisdiction shall monitor,
inspect and maintain surveillance of all activities in the fisheries sector,
particularly fishing itself, transhipment, landing, marketing, transport and
storage of fisheries products and the recording of landing and sales. The Member States shall take the necessary
measures to ensure the best possible control within their territory and within
maritime waters subject to their sovereignty or jurisdiction, taking into
account their particular situation".
[19] In relation to
the monitoring of catches, Articles 6 to 8 provide:
"Article
6
1. The
masters of Community fishing vessels fishing for a stock or group of stocks
shall keep a logbook of their operations, indicating particularly the
quantities of each species caught and kept on board, the date and location
(ICES statistical rectangle) of such catches and the type of gear used.
2. From
3. The
masters of Community fishing vessels shall enter in their logbook the
quantities caught at sea, the date and location of these catches and the
species referred to in paragraph 2.
.....
Article 7
1. The
Master of a Community fishing vessel who wishes to utilize landing locations in
a Member State other than the flag Member State shall comply with the
requirements of any designated port scheme established by that Member State in
accordance with Article 38, or if that Member State does not operate such a scheme,
he must inform the competent authorities in that Member State at least four
hours in advance of:
- the landing location(s) and
estimated time of arrival there,
- the quantities of each species to
be landed.
....
Article 8
1. The
master of each Community fishing vessel having on overall length equal to, or
more than, 10 metres, or his representative, shall after each trip and within
48 hours of landing submit a declaration to the competent authorities of the
Member State where the landing takes place.
The master shall be responsible for the accuracy of the declaration,
which shall indicate, as a minimum, the quantities landed of each species
stipulated in Article 6(2) and the area where they were caught".
[20] The rationale
of these provisions is explained in the recitals to the Regulation. Recitals 9, 13 to 15, 18 and 19 are
particularly relevant:
"[9] Whereas,
to ensure that all catches and landings are kept under surveillance, Member
States must monitor in all maritime waters the activities of Community vessels
and all related activities allowing verification of the implementation of the
rules concerning the common fisheries policy;
.....
[13] Whereas
the management of fisheries by the fixing of TACs requires detailed knowledge
of the composition of catches, such knowledge being equally necessary for the
other procedures provided for in Regulation (EEC) No.3760/92 [the predecessor
of Regulation 2371/2002]; whereas this
requires the keeping of a logbook by each master of a fishing vessel;
[14] Whereas
it is necessary for the
[15] Whereas
it is essential to clarify and confirm at the time of landing the information
contained in the logbooks; whereas, to
this end, it is necessary that those involved in the landing and marketing of
catches should declare the quantities landed, transhipped, offered for sale of
[sic] purchased;
.....
[18] Whereas
limitations on catches must be managed at both
[19] Whereas,
in order to ensure the conservation and management of all the resources used,
the provisions relating to the logbook, the landing and sales declarations and
the information concerning transhipments and registration of catches may be
extended to stocks which are not subject to a TAC or quota".
[21] The only other
provision of Regulation 2847/93 which it is necessary to note is
Article 38, which provides:
"This Regulation shall apply without
prejudice to any national control measures which go beyond its minimum
requirements, provided that they comply with Community law and are in
conformity with the common fisheries policy".
The appellant's licence
[22] The Community
legislation which we have discussed is implemented in the
[23] The
appellant's licence states:
"The authority granted by this
licence and the limitations to that authority are contained in the Schedule
which forms part of this licence. This
licence is also subject to the attached conditions".
Note 1 to the licence states:
"The purpose of this licence is to
enable Fisheries Ministers in the UK, in conformity with the Common Fisheries
Policy to monitor and control the quantity of fish taken by fishing vessels
flying the flag of the United Kingdom, Channel Islands or Isle of Man, and to
ensure that vessels fishing against the United Kingdom's quotas have a real
economic link with the United Kingdom, Channel Islands or Isle of Man".
Paragraph 1 of the Schedule states that, subject to specified
limitations, the licence authorises the vessel to fish for all species of sea
fish in certain specified areas, and for particular species in certain other specified
areas. In terms of paragraph 3, the
licence is valid for 2005. In terms of
paragraph 15, the authority of the licence is subject to specified quota
limitations, expressed as the maximum amount of particular species or groups of
species that may be caught in specified sea areas and retained on board, landed
or transhipped per week or calendar month.
In that regard, conversion factors are given for calculating the live
weight of certain "TAC species", as they are described. Those species include ling.
[24] Condition 8 is
intended to ensure that vessels fishing against
[25] As we have
explained, Conditions 10 and 12 impose the primary requirement in relation
to landings. In particular, Condition 10
requires that "except as provided for in Condition 11", landings of sea fish by
vessels with an overall length of 15 metres or more are to be made only at
one of the designated ports listed in Condition 10, at the designated
location (if any) within the port, and that the vessel must arrive at the port within
the designated times listed in the condition.
Condition 12 requires that, prior to commencing landing sea fish at
a designated port, a copy of the logsheet, completed in accordance with
Regulation 2807/83 (which lays down detailed requirements in relation to
logbooks and landing declarations) must be deposited in a specified location at
the port. As we have explained,
Condition 11 provides an exception to the foregoing: it permits vessels with an overall length of
15 metres or more, with "more than one tonne, live weight, in total on
board of species for which a TAC has been set", to seek authority to arrive at
a non-designated port, or to arrive at a designated port outside designated
times. Advance notification has to be
given to the Fisheries Departments' UK Call Centre of information including the
details of the vessel for which authority is sought, the port at which the
vessel is to arrive, the intended date and time of its arrival, and "details of
the catch on board by species in kilogrammes, live weight".
[26] At first
sight, the meaning of the phrase "species for which a TAC has been set" is
straightforward: it would appear to
cover any species for which there was at the relevant time a TAC. As we have explained, however, it was
contended on behalf of the appellant that the phrase should be construed as if
it contained the qualification
"....and which have been caught in an
area in respect of which a TAC has been set for that species".
One difficulty with that contention is textual. In the first place, the phrase in question
does not contain any such qualification.
Furthermore, as we have explained, conditions 8 and 9 are concerned
with catches which count towards quotas, and use a phrase which reflects that
concern, namely "stocks subject to EC quotas".
If it had been intended that Condition 11 should similarly be concerned
only with catches of stocks which counted towards TACs, the same or a similar
phrase could have been expected to be used.
The fact that a phrase of wider scope was used instead suggests that a
wider meaning was intended.
[27] Counsel for
the appellant submitted however that, since the only rationale for referring to
TACs in Condition 11 was the Fisheries' Department's need to monitor and
control catches which counted towards TACs (and, therefore, towards UK quotas),
it followed that the only catches which could be relevant to that rationale
were those which had in fact been caught in areas where the species in question
were subject to TACs. This proposition
appears to us to be a non sequitur.
[28] As counsel
acknowledged, the purpose of the Designated Landing Port condition comprised by
Conditions 10 and 11 is to enable the United Kingdom to carry out the
monitoring and inspection of catches and landings, in compliance with its
obligations under Community law (cf. Matthew
v Aitken 2004 S.C.C.R.515 at
paragraph 9, where the condition which is now Condition 12 was
described as being "designed to police and to enforce" the Common Fisheries
Policy). The purpose of having
designated ports and designated arrival times is to facilitate such monitoring
and inspection, by directing vessels to land their catches at ports where the
necessary facilities have been provided, and at times when those facilities are
available. If a designated port scheme
(as such a system is described in Article 7 of Regulation 2847/93) is to be
relaxed so as to allow, exceptionally, for the landing of a catch at a
non-designated port or outside designated hours, it is understandable that
requirements should be imposed which reflect the purpose of the scheme and the
practical exigencies of monitoring and enforcement.
[29] Such
requirements are imposed by Condition 11.
In particular, it is readily understandable that it should be necessary
to give prior notification to the Fisheries Department under Condition 11
in order to obtain authority to land a catch at a non-designated port or
outside designated hours. Such
notification affords the Fisheries Department an opportunity to make special
arrangements for monitoring and inspection measures of the kind which could be
undertaken if the landing were made in the ordinary way in accordance with Condition 10. The importance of such monitoring and
inspection is illustrated by the facts of the present case: as the Sheriff found, the appellant landed
his catch at a non-designated port without giving prior notification to the
Fisheries Department, and under-declared the catch substantially in his
logbook. In this context, the purpose of
the requirement that the vessel must have on board more than a tonne of species
for which a TAC has been set appears to be to set a threshold: a landing must be of a certain minimum
significance before special arrangements will be made; otherwise, the catch must be landed at a
designated port in the ordinary way. Having
regard to the UK's obligations in relation to inspection and enforcement (e.g.
under Article 2 of Regulation 2847/93 and Article 24 of
Regulation 2371/2002), it is understandable that a substantial catch of
TAC species should be regarded as significant in that context, regardless (at
the stage of notification under Condition 11) of the location where the fish are
claimed to have been caught.
[30] We therefore
consider that the phrase "species for which a TAC has been set", in
Condition 11.1(b) should be interpreted as extending to all species for
which a TAC has been set, whether or not a TAC has been set for that species in
the area in which the fish on board the vessel were caught.
[31] So
interpreted, it is not in dispute that there was more than one tonne of
such species on board the vessel on each of the occasions in question, even if
the catch of ling were to be disregarded.
In those circumstances, it is unnecessary for us to decide whether ling
was a species for which a TAC had been set, within the meaning of
Condition 11.1(b). We prefer to
express no opinion on that question, on which we were not fully addressed.
Conclusion
[32] The questions
posed by the Sheriff in the Stated Case were:
1. Did I err in
repelling the submission of no case to answer?
2. On the facts
stated was I entitled to convict the appellant?
3. Was the
sentence excessive in all the circumstances?
We shall answer the first question in the negative and the
second question in the affirmative. The
appeal will be continued for a hearing on the question of sentence.