|
Clause 243: Dwellings
635. This clause provides that an enforcement officer may not enter a dwelling unless a justice has issued a warrant authorising entry. It sets out the matters that must be satisfied before a warrant may be granted. It also introduces Schedule 17 which sets out further provisions relating to warrants (how to obtain one and matters regarding the execution of the warrant).
Clause 244: Powers of search, examination, etc
636. The powers in this clause allow an enforcement officer, when exercising a power of inspection pursuant to clauses 239 to 243, to search those premises and examine anything in it. They further allow the officer to stop someone and detain them to perform a search of anything in their possession or control although subsection (8) means they cannot search a person. Subsections (3) to (9) enable the officer to examine anything that is in or on the relevant premises, is attached to them or is part of them, including anything that is controlled from them. Where appropriate, the officer can also test or measure any object found, which includes live animals (for example, shellfish) or plants. If necessary, an enforcement officer may break open any container or things that have been locked. They could also require assistance from anyone within the premises or connected to the premises to help them, or from someone who has been carrying an activity for which the officer has enforcement powers.
Clause 245: Power to require production of documents, etc
637. This clause gives enforcement officers the power to require a person on or in the relevant premises being inspected to produce documents or records that they have. A document includes information which is recorded on paper, in an electronic format, and pictorial and related images.
Clause 246: Powers of seizure, etc
638. Where the officer suspects that an offence may have been committed, this clause enables an enforcement officer to seize and remove (and detain) anything found on the premises or where they have been undertaking an activity for which the officer has powers to enforce. The officer can also take copies of or extracts from any document or record found on the relevant premises. Subsection (5) limits the power so that it does not allow an officer to remove any document that is required by law to be kept on the premises, such as vessel registration papers. However, subsection (6) allows such items to be seized when a vessel is in port.
639. Subsection (7) prevents an officer seizing an item which is subject to legal privilege under the Police and Criminal Evidence Act 1984 or, in Scotland, for which a claim to confidentiality of communications could be made.
Clause 247: Further provision about seizure
640. Subsections (1) and (2) give officers powers to seize and remove things which are kept in a container and to require evidence to be put into a container so that it can be removed, such as might be necessary for undersized fish.
641. Subsection (3) enables officers to require that documents or materials are kept on the premises for safekeeping pending removal and seizure.
642. Subsections (4) and (5) provide that the officer may require someone to assist them with regards to matters under that person’s control, for instance by opening doors, assisting with moving items etc.
643. Subsection (6) amends the definition of premises in section 66 of the Criminal Justice and Police Act 2001 to include “marine installation” so that the Part 2 powers of seizure therein apply to marine installations. Subsection (7) adds the Marine and Coastal Access Bill [HL] to the list of legislation to which section 50 of that Act applies. Section 50 of the 2001 Act enables officers to remove property that otherwise they would not have the power to seize so that they can sift through and determine whether it contains something which they would have the power to seize, when it is not reasonably practicable to determine this on the premises.
Clause 248: Retention of seized items
644. This clause allows items seized during an investigation to be kept for as long as is necessary for the investigation and any trial proceedings, unless a photograph or copy would provide sufficient evidence.
Miscellaneous and ancillary powers
Clause 249: Power to record evidence of offences
645. This clause provides enforcement officers with powers to use any device to take visual images of anything connected with the relevant premises for evidence in the investigation of a suspected offence. Subsection (2) describes where the power can be used and subsection (3) enables the officer to require a person who has some control in that situation to help them.
Clause 250: Power to require name and address
646. If the officer believes someone has committed an offence, they can require that person to give the officer their name and address.
Clause 251: Power to require production of licence, etc
647. If the officer believes someone has been undertaking an activity which needs a licence, permit, etc., the officer can require that person to show them that licence. Subsection (2) allows the person to produce the licence later should they be unable to produce it if they do not have it on them at the time the officer demanded it.
Clause 252: Power to require attendance of certain persons
648. Where an officer has boarded a vessel or marine structure or entered any premises he may require the attendance of those persons listed.
Clause 253: Power to direct vessel or marine installation to port
649. This clause gives enforcement officers the power to direct a vessel or marine installation to the port they consider to be the nearest convenient port and detain it there. The clause only applies in situations where an officer believes that an offence has been committed and it would not be practical to carry out their duties without first taking the vessel or marine installation to port and detaining it there or where the officer believes that the vessel itself is evidence of the commission of an offence and the only way to preserve the evidence is to take it into port.
650. Subsection (2) sets out powers which enable an officer to get the vessel or movable marine installation (such as a jack-up rig) to the nearest convenient port. A convenient port may not be the nearest in terms just of distance, but may be, for example, the nearest one able to take the size of vessel, provide a berth or suitable storage facilities. The officer may take the vessel or installation there themselves, or arrange for someone else to take it, or require the person in charge of it to take it into port. For instance, they might arrange for a local pilot to take the vessel into port.
651. Subsection (3) provides that once the vessel or marine installation is in port, the officer may detain it or require the person in charge to do so.
652. Subsections (4) to (7) provides that enforcement officers are obliged to issue a written notice of detention to the person in charge of the vessel or marine installation. The notice must state that the vessel or marine installation will be detained until such time as the notice is withdrawn. The notice served under this subsection may be withdrawn by another written notice signed by an enforcement officer of the same authority as that of the enforcement officer who originally detained the vessel.
653. The power granted in this clause is different from the power granted in clause 272. That clause provides for the detention of fishing vessels in relation to court proceedings. Detention of a vessel under clause 253 may be performed for investigation purposes only.
Clause 254: Assistance etc
654. This clause enables enforcement officers to take other people and anything necessary (including equipment and materials) to assist them in their duties. These powers apply wherever the enforcement officer may be. Their assistants could include specialists, for example a vet if the officer is exercising his powers in order to enforce wildlife legislation. Anybody brought by the enforcement officer to assist will be supervised or directed by the officer.
Clause 255: Power to use reasonable force
655. This clause allows enforcement officers and their assistants to use reasonable force wherever necessary to carry out their functions under the Bill. Reasonable force might be needed to prevent documents being thrown overboard, for example.
Interpretation
Clause 256: Interpretation of this Chapter
656. Definitions are provided for words or expressions used in this Chapter.
Chapter 3: Licensing Enforcement Powers
Clause 257: Power to require information relating to certain substances and objects
657. This clause enables enforcement officers to require a person to give details of any substance or objects on board their vehicle, vessel, aircraft or marine structure. People on board can also be required to declare information about substances or objects lost or missing from their vehicle, vessel, aircraft or marine structure. This re-enacts the power in the Food and Environment Protection Act 1985 and relates to information about substances which might be harmful to human health or the environment. Subsections (2) and (3) prevent this information being used as evidence in a criminal prosecution (save for the offence of making a false statement, if the information given is found to be false).
Chapter 4: Fisheries Enforcement Powers
Inspection and seizure of objects at sea
Clause 258: Power to inspect and seize objects at sea
658. This clause provides enforcement officers with powers to inspect any object found in the sea which is believed to have been or is being used for or in connection with fishing. This includes powers to lift the object out of the sea for inspection. If the officer believes that the object in question has been used in committing, or is evidence of, an offence then it may be seized. The power to seize an object includes power to seize anything attached to or contained within the object (for example, fish). If the officer does not seize the item they must replace it or, if it is not practicable to do so, may seize it for subsequent collection by its owner.
Clause 259: Reports of inspections under clause 258
659. This clause contains reporting requirements that an enforcement officer must follow after inspecting objects under clause 258. The report must state the date and time of the inspection, the identity of the officer in charge of the inspection and how the officer may be contacted. Wherever it is reasonably practicable to do so, a copy of the report must be attached to the object.
660. Where anything has been seized the report must also state what has been seized, the reason for its seizure, and any further action to be taken in respect of the object.
661. Where the object has not been seized, the clause makes provision that the report should be served on every person who appears to the officer to be the owner or one of the owners of the property if the report cannot be attached to the object. If, after taking reasonable steps to identify any person as owning the object, the officer cannot do so, he must take reasonable steps to bring the report to the attention of persons likely to be interested in it.
662. Where an object was seized and the relevant authority has decided not to take proceedings in respect of any offence relating to the object, or such proceedings have concluded, the relevant authority must serve a copy of the report on every person who seems to be the owner, or one of the owners, of the property. If the object was seized because it was impractical to replace it pursuant to clause 259(5), the report and notice of collection must be served together. Where a relevant authority cannot identify any person as owning the object it must take reasonable steps to bring the contents to the attention of those likely to be interested in it.
Clause 260: Retention of objects seized under clause 258
663. This clause provides for the retention by the relevant authority of any objects seized under clause 258(2). The objects may be retained until such time that a decision has been made not to prosecute or where proceedings are completed without an order for forfeiture being made. In either event, the objects must be made available for collection. The object does not however have to be made available if it is gear or fish liable for forfeiture under clause 269 or 270.
Clause 261: Disposal of objects seized under clause 258
664. This clause sets out arrangements for the disposal of objects seized under clause 258 where the relevant authority no longer wishes to retain the object or the relevant authority is required to make the object available for collection.
665. The relevant authority must send a “notice of collection” to every person who appears to the authority to be the owner or one of the owners of the property. The authority may take any other steps it sees fit to notify such persons that the object is available for collection. Where an owner cannot be identified, it can take the action it sees fit to bring the notice to the attention of persons likely to be interested in it. The notice must state where the object is and that the object must be collected within 3 months or it will be disposed of.
Seizure for purposes of forfeiture
Clause 262: Power to seize fish for purposes of forfeiture
666. This clause provides a power for an enforcement officer to seize fish for the purpose of forfeiture. The enforcement officer can only do this where a court has the power, following conviction, to order forfeiture. This applies whether the fish have been seized from a vessel, from the sea or from the shore (pursuant to clause 246).
667. The clause gives enforcement officers practical powers, such as allowing them to take the container the fish are in or to require the fish to be put in a container. It includes a power to require anybody (for example, crew, skipper etc) to keep the fish secure and not to tamper with them whilst the investigation is ongoing and until the fish are seized and removed. It also includes the power to request assistance from anybody in or on the premises whilst the enforcement officer is carrying out his duties and the power to require a person carrying on an activity in respect of which the officer has functions, to afford facilities and assistance.
Clause 263: Power to seize fishing gear for purposes of forfeiture
668. The same principles which apply in relation to clause 258 (regarding the seizure of fish for the purpose of forfeiture) apply here to the seizure of fishing gear.
Clause 264: Procedure in relation to seizure under clause 262 or 263
669. This clause creates an obligation on the enforcement officer who seizes any fish or fishing gear under clauses 262 or 263 to serve a written notice on every person who appears to the officer to be the owner or one of the owners at the time the fish or gear were seized, and sets out other persons on whom the notice must be served (depending on the location from which the property was seized).
670. The written notice must state what has been seized, the reason for its seizure, the nature of the alleged offence committed and any proposed action to be taken. The notice must also indicate that, unless the property is liable for forfeiture under clause 269 or 270, it will be kept until such time as it may be released or the court has ordered its forfeiture.
671. Subsections (3) to (5) set out the procedure where the fish or fishing gear has been seized following inspection carried out in accordance with clause 258. It states that the officer must serve the notice referred to in clause 259 at the same time as the notice which is to be served under this section and makes provision for the situation where the owner cannot be ascertained.
Clause 265: Retention of property seized under clause 262 or 263
672. This clause provides the relevant authority with the power to retain any fish or fishing gear seized under clause 262 or 263. However the property must be made available for collection as soon as is reasonably practicable where either the relevant authority decides not to bring court proceedings or any proceedings brought are concluded without an order for forfeiture being made.
Clause 266: Bonds for release of seized fish or gear
673. This clause allows the owner of any property (or the owner or charterer of the vessel if the property was seized from there) seized under clause 262 or 263 and being retained under clause 265 to lodge a bond with the relevant authority in return for its release. The relevant authority may set conditions for the release and may enter into an agreement with the owner as to the amount of money to be given as the security. Where an agreement is not reached, the court may determine the amount to be paid as security.
674. If the relevant authority has decided not to take proceedings or proceedings have concluded with no order for forfeiture having been made, the relevant authority must return the bond as soon as possible. Where a court has the power to order the forfeiture of fish or fishing gear seized under clause 262 or 263 that power applies equally to any bond given under this clause.
Clause 267: Power of relevant authority to sell seized fish in its possession
675. This clause gives the relevant authority the power to sell any fish it has retained under clause 265. The power of the court to order the forfeiture of the fish may be exercised in relation to the proceeds of the sale of the fish.
676. The relevant authority may retain the proceeds of sale until the court orders the money to be forfeit, the relevant authority has decided not to take proceedings or proceedings have concluded with no order for forfeiture having been made. If the relevant authority decides not to take proceedings or proceedings have concluded with no order for forfeiture having been made then the relevant authority must release the proceeds of the sale as soon as possible. Subsections 5 and 6 provide for the persons to whom the proceeds of sale are to be released and the procedure if that money remains unclaimed.
677. Provision is also made as to how the fish are to be sold, including a right for the relevant person to make representations as to how the fish are to be sold. This clause also permits the relevant authority to deduct their reasonable expenses from the proceeds of sale.
Clause 268: Disposal of property seized under clause 262 or 263
678. Where the relevant authority no longer wishes to retain fish or fishing gear seized under clause 262 or 263, or where it is required to make such property available for collection under clause 265, clause 268 requires a notice of collection to be served on every person who appears to be the owner, or owners, of the property. The notice must state the location from which the property may be collected and that if not collected within 3 months it will be disposed of. The specified location for collection will usually be a port office. It further makes provision where the relevant authority is unable to identify an owner.
Forfeiture
Clause 269: Forfeiture etc of prohibited items
679. This clause provides a power for certain fishing gear seized by an enforcement officer to be forfeited to the relevant authority for disposal. The forfeiture power applies to any fishing gear seized on board a vessel or from the sea which when seized by the enforcement officer could not be used for any form of fishing without committing an offence under the law of England and Wales. Examples of such gear include “French Dredges”, gill and other types of nets with mesh sizes between 71-89mm. The forfeiture power does not apply to gear found on land.
Clause 270: Forfeiture etc of fish failing to meet size requirements
680. This clause provides a forfeiture power in respect of fish that fail to meet size requirements which corresponds to the forfeiture power in respect of fishing gear in clause 269.
Clause 271: Further provision about forfeiture under clause 269 or 270
681. This clause gives effect to Schedule 18 which makes detailed provision in respect of the forfeiture of gear or fish which fail to meet size requirements in clauses 269 and 270.
Clause 272: Forfeiture by court following conviction
682. This clause applies where, after a successful prosecution under fisheries legislation, the court orders that the fish or gear be forfeited in respect of the offence committed. The relevant authority will be ordered to take possession of the property and may dispose of it as it sees fit. The proceeds of any sale may be retained by the relevant authority and the court may order the defendant to pay the costs of the relevant authority in storing the property.
Detention of vessels in connection with court proceedings
Clause 273: Power to detain vessels in connection with court proceedings
683. This clause allows an enforcement officer to detain a vessel to ensure the attendance of the alleged offenders in court and the payment of any fine on conviction. The enforcement officer has the power to direct the vessel to port and a power to hold the vessel in port or require the person in charge of the vessel to do so.
684. The clause sets out that the power to detain can be used where an enforcement officer has reasonable grounds to suspect that an offence has been committed by the owner, master or charterer of a fishing vessel. Furthermore, in order to detain a vessel, the enforcement officer must either anticipate that court proceedings will be commenced in respect of the offence committed and there is a real risk that the alleged offenders will not attend court unless the vessel is detained or the enforcement officer must suspect that following a conviction and imposition by the court of a fine, the court is likely to use its detention powers until all fines have been paid.
685. This clause gives an enforcement officer powers to take the vessel and its crew to the nearest convenient port and detain the vessel there. A convenient port may not be the nearest in terms of distance, but it may be, for example, the nearest one able to take the size of the vessel, provide a berth or suitable storage.
686. An enforcement officer is required to issue a written notice to the person in charge of the vessel stating why the vessel has been detained and the circumstances in which it would be released.
Clause 274: Release of vessels detained under clause 273
687. This clause makes provision for the release of a vessel which is being detained under clause 273. The vessel ceases to be detained if: the notice for detention is withdrawn; the vessel is released by order of the court; proceedings associated with the vessel’s detention have concluded; or the court exercises its power to detain the vessel.
688. An enforcement officer can withdraw a notice of detention at any time and such a notice must be withdrawn if any of the grounds for release are met: either that the relevant authority has decided to take no proceedings in respect of the vessel or if there is no longer reason to believe either that the person in question would fail to attend court or that a court would order detention of the vessel.
Clause 275: Power of court to order release of vessels
689. This clause applies in circumstances where a vessel has been detained under clause 273. It provides a power for the court to order the release of the vessel. An order can be made by the court if is satisfied that the continued detention of the vessel under clause 273 is no longer necessary. This might be either because the continued detention of the vessel is not necessary to secure any person’s attendance at court or because following conviction the court would not order the vessel to be detained.
| 
