Marine and Coastal Access Bill [HL]

House of Lords

Session 2008 - 09
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Other Bills before Parliament

Marine and Coastal Access Bill [HL]

Marine and Coastal Access Bill [HL]
Part 8 — Enforcement
Chapter 4 — Fisheries enforcement powers
157

259
Power to seize fishing gear for purposes of forfeiture
(1)
An enforcement officer who has the power conferred by this section may seize
and detain or remove any fishing gear which the officer reasonably believes
has been used in the commission of a relevant offence.
(2)
The power conferred by this section may only be exercised for the purposes of
5
securing that, in the event of a conviction for a relevant offence, the court may
exercise any relevant power of forfeiture in relation to fishing gear used in the
commission of the offence.
(3)
If, in the opinion of an enforcement officer, it is not for the time being
practicable for the officer to seize and remove any fishing gear, the officer may
10
require—
(a)
the person from whom the fishing gear is being seized, or
(b)
where the officer is exercising a power of inspection conferred by
section 236, 237 or 238, any person in or on the relevant premises,

to secure that the fishing gear is not removed or otherwise interfered with until
15
such time as the officer may seize and remove it.
(4)
Where an enforcement officer is exercising a power of inspection conferred by
section 236, 237 or 238, the officer may require any person in or on the relevant
premises to afford such facilities and assistance with respect to matters under
that person’s control as the officer considers would facilitate the exercise of any
20
power conferred by this section.
(5)
Where an enforcement officer reasonably believes that a person is or has been
carrying on a relevant activity, the officer may require that person to afford
such facilities and assistance with respect to matters under that person’s
control as the officer considers would facilitate the exercise in relation to that
25
person of any power conferred by this section.
(6)
In this section—
“relevant activity”, in relation to an enforcement officer, means any
activity in respect of which the officer has functions;
“relevant power of forfeiture” means any power of a court to order the
30
forfeiture of any fishing gear used in the commission of an offence;
“the relevant premises”, in relation to an enforcement officer exercising a
power of inspection conferred by section 236, 237 or 238, means the
vessel, marine installation, premises or vehicle in relation to which the
power is being exercised.
35
260
Procedure in relation to seizure under section 258 or 259
(1)
An enforcement officer who seizes any property under section 258 or 259 must,
if it is reasonably practicable to do so, serve a notice on each of the following
persons—
(a)
every person who appears to the officer to have been the owner, or one
40
of the owners, of the property at the time of its seizure;
(b)
in the case of property seized from a vessel, the master, owner and
charterer (if any) of the vessel at that time;
(c)
in the case of property seized from premises, every person who appears
to the officer to have been an occupier of the premises at that time;
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(d)
in any other case, the person (if any) from whom the property was
seized.

Marine and Coastal Access Bill [HL]
Part 8 — Enforcement
Chapter 4 — Fisheries enforcement powers
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(2)
The notice must state—
(a)
what has been seized;
(b)
the reason for its seizure;
(c)
the offence which the officer believes has been committed;
(d)
any further action that it is proposed will be taken;
5
(e)
that, unless the property is liable to forfeiture under section 265 or 266,
it is to be detained until such time as it is released or its forfeiture is
ordered by the court.
(3)
Subsections (4) and (5) apply in a case where the property was seized following
an inspection carried out in exercise of the power conferred by section 254.
10
(4)
The officer must serve a copy of the report referred to in section 255 on every
person falling within paragraph (a) of subsection (1) above at the same time as
the officer serves a notice on that person under this section.
(5)
In a case where the officer, after taking reasonable steps to do so, is unable to
identify any person as owning the property—
15
(a)
any reference in this section to a requirement to serve a copy of a report
on that person is to be read as a reference to a requirement to take such
steps as the authority thinks fit to bring the contents of the report to the
attention of persons likely to be interested in it, and
(b)
the reference in subsection (4) to serving a copy of the report referred to
20
in section 255 is to be read as a reference to taking the steps referred to
in subsection (9)(a) of that section.
261
Retention of property seized under section 258 or 259
(1)
Any property seized by an enforcement officer under section 258 or 259 may
be retained by the relevant authority.
25
(2)
If either of the grounds for release in subsection (3) applies, the relevant
authority must, as soon as is reasonably practicable, make the property
available for collection.
(3)
The grounds for release referred to in subsection (2) are—
(a)
that the relevant authority has decided not to take proceedings in
30
respect of any offence in relation to which the property was seized;
(b)
that any proceedings taken in respect of such an offence have
concluded without any order for forfeiture having been made.
(4)
But subsection (2) does not apply if the property is liable to forfeiture under
section 265 or 266.
35
262
Bonds for release of seized fish or gear
(1)
This section applies to any property which is being retained by the relevant
authority under section 261.
(2)
The relevant authority may enter into an agreement with any person falling
within subsection (3) for security for the property to be given to the relevant
40
authority by way of bond in return for the release of the property.
(3)
The persons referred to in subsection (2) are—
(a)
the owner, or any of the owners, of the property;

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Chapter 4 — Fisheries enforcement powers
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(b)
in the case of property seized from a vessel, the owner or charterer, or
any of the owners or charterers, of the vessel.
(4)
Any bond given under this section is to be—
(a)
for such amount as may be agreed, or
(b)
in the event of a failure to agree an amount, for such amount as may be
5
determined by the court.

“The court” means a magistrates’ court in England and Wales.
(5)
A person who gives a bond under this section must comply with such
conditions as to the giving of the bond as the relevant authority may
determine.
10
(6)
If either of the grounds for release mentioned in subsection (7) applies, then
any bond given under this section must be returned as soon as possible.
(7)
The grounds for release referred to in subsection (6) are—
(a)
that the relevant authority has decided not to take proceedings in
respect of any offence in relation to which the property was seized;
15
(b)
that any proceedings taken in respect of such an offence have
concluded without any order for forfeiture having been made.
(8)
Any power which a court has to order the forfeiture of any fish or any fishing
gear may instead be exercised in relation to any bond given under this section
as security for that fish or fishing gear.
20
263
Power of relevant authority to sell seized fish in its possession
(1)
Any fish which are being retained by the relevant authority under section 261
may be sold by the authority.
(2)
Any power which a court has to order the forfeiture of any fish may instead be
exercised in relation to the proceeds of any sale of the fish under this section.
25
(3)
Subject to subsection (6), the proceeds of any sale under this section may be
retained by the relevant authority until such time as—
(a)
a court exercises any power it has to order the forfeiture of the
proceeds, or
(b)
either of the grounds for release mentioned in subsection (4) applies.
30
(4)
The grounds for release referred to in subsection (3) are—
(a)
that the relevant authority has decided not to take proceedings in
respect of any offence in relation to which the fish were seized;
(b)
that any proceedings taken in respect of such an offence have
concluded without any order for forfeiture having been made.
35
(5)
If either of the grounds for release mentioned in subsection (4) applies, the
relevant authority must, as soon as is reasonably practicable, release the
proceeds of sale to any person who appears to the authority to be the owner,
or one of the owners, of the fish.
(6)
If the proceeds of sale are still in the relevant authority’s possession after the
40
end of the period of six months beginning with the date on which the fish were
sold, the relevant authority may retain the proceeds and apply them in any
manner it thinks fit.

The relevant authority may exercise its power under this subsection to retain
and apply the proceeds of sale only if it is not practicable at the time when the
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power is exercised to dispose of the proceeds by releasing them immediately
to the person to whom they are required to be released.
(7)
Subject to subsection (9), any fish sold under this section must be sold at
auction.
(8)
Before selling the fish, the relevant authority must give the owner of the fish a
5
reasonable opportunity to make representations as to the manner in which the
fish are sold.
(9)
If—
(a)
the owner of the fish requests that the fish be sold—
(i)
at a particular auction, or
10
(ii)
by a method of sale other than auction,

and
(b)
the relevant authority does not consider that it would be unreasonable
to comply with that request,

the relevant authority must comply with the request when selling the fish.
15
(10)
The relevant authority may deduct any reasonable expenses it has incurred in
selling any fish under this section from the proceeds of the sale.
(11)
In a case where there is more than one owner of the fish, subsection (9) applies
only if the request is made by or on behalf of all of them.
264
Disposal of property seized under section 258 or 259
20
(1)
This section applies to any property seized under section 258 or 259 which the
relevant authority—
(a)
no longer wishes to retain for any purpose, or
(b)
is required to make available for collection by virtue of section 261.
(2)
In this section a “notice of collection” is a notice stating that—
25
(a)
the property specified in the notice is available to be collected from the
location so specified, and
(b)
if the property is not collected before the end of the period of three
months beginning with the date specified in the notice, the relevant
authority will dispose of the property.
30
(3)
The relevant authority must serve a notice of collection on every person who
appears to the authority to be the owner, or one of the owners, of the property.
(4)
The relevant authority may take any other steps it considers appropriate to
notify every such person that the property is available to be collected.
(5)
If the relevant authority, after taking reasonable steps to do so, is unable to
35
identify any person as owning the property, the relevant authority must—
(a)
if it is reasonably practicable to do so, serve a notice of collection on
every person who is an appropriate person for the purposes of this
subsection, and
(b)
take such steps as it thinks fit to bring the information contained in the
40
notice of collection to the attention of persons likely to be interested in
it.
(6)
For the purposes of subsection (5), the following persons are “appropriate
persons”—

Marine and Coastal Access Bill [HL]
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(a)
in the case of property seized from a vessel, the master, owner and
charterer (if any) of the vessel at the time of the seizure of the property;
(b)
in the case of property seized from premises, every person who appears
to the relevant authority to have been an occupier of the premises at
that time;
5
(c)
in any other case, the person (if any) from whom the property was
seized.
(7)
If the relevant authority complies with subsection (3) or subsection (5), as the
case may be, the relevant authority may, at the end of the period mentioned in
subsection (2)(b), dispose of the property in whatever way it thinks fit.
10
Forfeiture
265
Forfeiture etc of prohibited items
(1)
Any item to which this section applies is liable to forfeiture under this section
if the use of that item for sea fishing would in any circumstances constitute an
offence under the law of England and Wales.
15
(2)
This section applies to any item seized on board a vessel or from the sea by an
enforcement officer in the exercise of any power conferred by this Act.
(3)
Any item forfeited under this section is to be forfeited to the relevant authority
and may be disposed of by that authority in any manner it thinks fit.
266
Forfeiture etc of fish failing to meet size requirements
20
(1)
Any fish to which this section applies are liable to forfeiture under this section
if, by virtue of the fish failing to meet requirements as to size, an offence under
the law of England and Wales has been committed in respect of the fish.
(2)
This section applies to fish seized by an enforcement officer in the exercise of
any power conferred by this Act.
25
(3)
Any fish forfeited under this section are to be forfeited to the relevant authority
and may be disposed of by that authority in any manner it thinks fit.
267
Further provision about forfeiture under section 265 or 266
Schedule 18 (which makes provision in relation to the forfeiture of property
liable to forfeiture under section 265 or 266) has effect.
30
268
Forfeiture by court following conviction
(1)
This section applies where a court by or before which a person is convicted of
an offence under the fisheries legislation orders the forfeiture of any fish or any
fishing gear in respect of that offence.
(2)
The court must order that the property to be forfeited is to be taken into the
35
possession of the person or body by whom proceedings for the offence were
brought.
(3)
The property may be disposed of as that person or body thinks fit.

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(4)
Any proceeds arising from the disposal of the property may be retained by the
person or body.
(5)
The court may order any person convicted of the offence to pay any costs
reasonably incurred by any person or body in storing the property that is to be
forfeited.
5
(6)
In this section—
“the fisheries legislation” means—
(a)
any enactments relating to sea fishing (including any enactment
relating to fishing for shellfish, salmon or migratory trout);
(b)
any enforceable EU restrictions and enforceable EU obligations
10
relating to sea fishing;
“enforceable EU obligation” means an obligation to which section 2(1) of
the European Communities Act 1972 (c. 68) applies;
“enforceable EU restriction” means a restriction to which section 2(1) of
that Act applies.
15
Detention of vessels in connection with court proceedings
269
Power to detain vessels in connection with court proceedings
(1)
This section applies where—
(a)
an enforcement officer has reasonable grounds for suspecting that a
relevant offence has been committed by the master, owner or charterer
20
of a vessel, and
(b)
the officer reasonably believes that—
(i)
if proceedings are taken against the person for the offence, there
is a real risk that the person will not attend court unless the
vessel is detained under this section, or
25
(ii)
if the person is convicted of the offence and the court by or
before which the person is convicted imposes a fine on that
person, it is likely that the court will order the vessel to be
detained.
(2)
Where this section applies, an enforcement officer who has the power
30
conferred by this section may—
(a)
take, or arrange for another person to take, the vessel and its crew to the
port which appears to the officer to be the nearest convenient port, or
(b)
require any person who is for the time being in charge of the vessel to
take it and its crew to that port.
35
(3)
When a vessel has been taken to a port in pursuance of this section, the officer
may—
(a)
detain it there, or
(b)
require the person for the time being in charge of it to do so.
(4)
An enforcement officer who detains any vessel under this section must, if it is
40
reasonably practicable to do so, serve a notice on—
(a)
the owner of the vessel,
(b)
the charterer (if any) of the vessel, and
(c)
the person who is for the time being in charge of the vessel.
(5)
The notice must state—
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Chapter 4 — Fisheries enforcement powers
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(a)
the reasons for detaining the vessel;
(b)
the circumstances in which the vessel may be released.
270
Release of vessels detained under section 269
(1)
This section applies where a vessel is being detained under section 269.
(2)
The vessel ceases to be detained under that section if one of the following
5
things occurs—
(a)
the notice of detention is withdrawn;
(b)
the court orders the release of the vessel under section 271;
(c)
any proceedings taken against the master, owner or charterer of the
vessel have concluded;
10
(d)
the court exercises any power it has to order the vessel to be detained.
(3)
A notice of detention may be withdrawn by service of a further notice signed
by an appropriate enforcement officer.
(4)
In subsection (3) the reference to an appropriate enforcement officer is a
reference to any enforcement officer acting on behalf of the same relevant
15
authority as the enforcement officer who served the notice of detention, and
includes a reference to that officer.
(5)
If any of the grounds for release mentioned in subsection (6) applies, then any
notice of detention must be withdrawn as soon as possible.
(6)
The grounds for release referred to in subsection (5) are—
20
(a)
that the relevant authority has decided not to take proceedings against
the master, owner or charterer of the vessel;
(b)
that there are no grounds for believing that any person referred to in
paragraph (a) against whom proceedings have been, or may be, taken
will fail to attend court;
25
(c)
that there are no grounds for believing that the court will order the
vessel to be detained.
(7)
In this section “notice of detention” means a notice served under section 269(4).
271
Power of court to order release of vessels
(1)
This section applies where a vessel is being detained under section 269.
30
(2)
If, on an application made to a magistrates’ court in England and Wales by the
owner or charterer, or any of the owners or charterers, of the vessel, the court
is satisfied that—
(a)
the continued detention of the vessel under section 269 is not necessary
to secure that the master, owner or charterer of the vessel will attend
35
court, or
(b)
there are no grounds for believing that the court will order the vessel to
be detained,

the court may order that the vessel be released.
272
Bonds for release of vessels
40
(1)
Where a vessel is being detained under section 269, the relevant authority may
enter into an agreement with the owner or charterer, or any of the owners or