Memorandum by the Ministry
of Agriculture, Fisheries and Food
2000 (S.I. 2000/1081)
1. The Select Committee has
requested submission of a memorandum on the following point:
4, in view of the opening words of paragraph (5)"A
person shall not be liable to a fine under paragraph (4)"ought
not the reference in paragraph (4) to its being subject to paragraph
(6) to be to paragraph (5)?"
2. The Committee will have noted
that paragraph (6) of article (4) is, in turn, expressed as being
subject to paragraph (5).
3. in the Ministry's view it
is necessary to consider paragraphs (4), (5) and (6) as a whole.
Whilst paragraph (4) is qualified by paragraph (5), it is also
qualified by paragraph (6). In providing for persons convicted
of a relevant offence to be liable to a fine on summary conviction,
paragraph (4) provides that any fine imposed cannot exceed "the
value of the fish in respect of which the offence was committed".
However, such a limit is only intended to apply to this particular
penalty and not to prevent or limit the imposition of other penalties
to which the convicted person may be liable under article 4 of
this Order or under any other enactment. The reference in paragraph
(4) to its being subject to paragraph (6) seeks to make this clear
by declaring that the fine under paragraph (4) has effect as an
4. The combined effect of paragraphs
(4) and (5) is that a court may order the forfeiture of any fish
in respect of which the offence was committed or impose this additional
fine in respect thereof, but may not do both. That this is a further
qualification on the operation of paragraph (4) is made clear
by the "subject to" wording in paragraph (6).
5. Exactly corresponding provisions
are to be found in section 11(2) to (5) of the Sea Fish (Conservation)
Act 1967, from which this drafting was taken. Before adopting
this approach for linking paragraphs (4) to (6) of article 4,
the Ministry considered the drafting and decided that, whilst
other approaches might be possible, the wording used by Parliamentary
Counsel in section 11 of the 1967 Act achieved its objective and
that adopting similar wording in the Order would have the advantage
of enabling a consistent approach to be taken to interpretation
(compare the reference in section 30(2) of the Fisheries Act 1981
to such an order containing provisions corresponding to provisions
in the 1967 Act).