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Clause 263: Power of relevant authority to sell fish in its possession
627. This clause gives the relevant authority the power to sell any fish it has retained under clause 261. 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.
628. 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. Subsection 6 provides for whom the proceeds of sale are to be released and the procedure if that money remains unclaimed.
629. 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 264: Disposal of property seized under section 258 or 259
630. Where the relevant authority no longer wishes to retain fish or fishing gear seized under clauses 258 or 259, or where it is required to make such property available for collection under clause 261, clause 264 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 265: Forfeiture etc of prohibited items
631. 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. It does not apply to gear found on land.
Clause 266: Forfeiture etc of fish failing to meet size requirements
632. This clause provides a corresponding forfeiture power in respect of fish which fail to meet size requirements to that forfeiture power in respect of fishing gear in clause 265.
Clause 267: Further provision about forfeiture under section 264 or 265
633. 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 265 and 266.
Clause 268: Forfeiture by court following conviction
634. 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 269: Power to detain vessels in connection with court proceedings
635. 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.
636. 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.
637. 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.
638. 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 270: Release of vessels detained under section 269
639. This clause makes provision for the release of a vessel which is being detained under clause 269. 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. In addition, an enforcement officer can withdraw a notice of detention at any time.
640. A notice of detention must also 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 271: Power of court to order release of vessels
641. This clause applies in circumstances where a vessel has been detained under clause 269. 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 269 is no longer necessary. This might be either to secure any person’s attendance at court or because following conviction the court would not order the vessel to be detained.
Clause 272: Bonds for release of vessels
642. This clause gives the relevant authority power to enter into an agreement with the owner or charterer of the vessel (or any of the owners or charterers of the vessel) to release a vessel detained under clause 269 when a monetary security has been paid. The amount of the security will be settled by the two parties to the agreement. The relevant authority may impose conditions on the person who provides security.
643. The security must be returned if any of the grounds for release are met. These grounds are where:
a) the relevant authority has decided to take no proceedings in respect of the vessel;
b) there are no grounds for believing that any relevant persons will fail to attend court;
c) had the bond not been placed, the court would not have ordered the detention of the vessel; or
d) any proceedings have concluded without any fine being imposed.
644. Where the court imposes a fine on any relevant person of the vessel, it may order that any monies paid as security should be used towards the payment of the fine. If the fine imposed is less than the security that was paid, any surplus money must be returned to the person who provided the security.
Clause 273: Power of court to order repayment of bonds
645. This is a parallel clause to clause 271 relating to bonds. Where a bond has been paid pursuant to 272 (and the notice of detention withdrawn) the court may order repayment of the bond to the person who provided the security if it is satisfied that the continuation of the bond is not necessary to ensure the attendance in court of the master, owner or charterer, or that, had the bond not been placed, the court would not have ordered the detention of the vessel.
Production of equipment
Clause 274: Power to require production of certain equipment
646. An enforcement officer can request anybody on board a fishing boat to produce any automatic recording or transmitting equipment they have used in relation to their licence conditions, in accordance with section 4(6) or 4A(6) of the Sea Fish (Conservation) Act 1967 (c.84). This could apply, for example, to a transmitter which sends location information to regulators via satellite.
Supplementary
Clause 275: Service of notices, etc
647. This clause specifies the means by which notices required to be served under this Chapter must be served. Such notices are to be delivered in person, left at an appropriate address or sent by post. In relation to the owner of a vessel the appropriate address is further defined by reference to the address given in the appropriate register. The clause stipulates the appropriate address for other persons, including firms and companies and unincorporated associations registered or doing business outside of the UK.
Clause 276: Conclusion of proceedings
648. This clause establishes a means of determining when proceedings have been concluded. Where proceedings have been terminated after an appeal, they are not to be considered as concluded until that process is finished. This is significant for various purposes in this Chapter, for example in triggering the release of a vessel that had been detained.
Clause 277: Interpretation of this Chapter
649. This clause provides definitions for words or expressions used in this Chapter.
Chapter 5: Common Enforcement Provisions
Introductory
Clause 278: Meaning of “enforcement officer”
650. This clause defines enforcement officer as someone who has powers under this Part of the Bill, save those who have powers by being an assistant to an officer.
Duties of enforcement officers
Clause 279: Duty to provide evidence of authority
651. This clause obliges enforcement officers who are exercising the common enforcement powers to show evidence that they have the authority to carry out their enforcement functions, when asked to do so. The duty does not apply to Marine Enforcement Officers of the Armed Services. If the officer thinks that to comply with the request immediately would create problems, such as putting the officer in personal danger or allowing evidence of an offence to be destroyed, they may defer complying with the request until it is convenient to do so.
Clause 280: Duty to state name and purpose, etc
652. In conjunction with clause 279, enforcement officers are also obliged to state their name, the power they are intending to use and reason for its use whenever they are requested to do so, although the officer can defer complying with the request if the immediate situation requires it (for example, if they think that the request is a delaying tactic to avoid the officer discovering an offence being committed at that moment in time). Someone assisting the enforcement officer need not give their name, but would need to say what power and why they intended to use that power, if so requested.
Liability of enforcement officers
Clause 281: Liability of enforcement officers etc
653. As with clauses 279 and 280, and in conjunction with relevant powers and relevant functions, enforcement officers and their assistants will be protected from being liable in any civil or criminal proceedings for anything done or not done as a result of carrying out their duties under the Act. This exemption from liability does not apply when an enforcement officer acts in bad faith, if there were no reasonable grounds for him or her to act in such manner or if it was unlawful in relation to the Human Rights Act. This immunity similarly covers any person assisting an enforcement officer.
Offences in relation to enforcement officers
Clause 282: Offences in relation to enforcement officers
654. This clause provides sanctions and penalties for anyone who fails to comply with a requirement made by an enforcement officer, or who assaults or intentionally obstructs an enforcement officer, when the officer is carrying out their duties. It is an offence for anyone knowingly to provide false or misleading information in any particular form or material to an enforcement officer. This includes intentionally failing to disclose any information or materials requested for by the enforcement officer. Anyone who pretends to be an enforcement officer is also guilty of an offence. Offences against enforcement officers also apply to their assistants.
655. Subsection (2) allows that someone who was required to produce a licence under clause 247 and did not do so at the time, but complied with a requirement to produce it later, is not guilty of an offence.
Chapter 6: Miscellaneous and Supplementary
Enforcement of Community rules
Clause 283: Enforcement of Community rules
656. This clause amends section 30 of the Fisheries Act 1981.
657. The general power in section 30(2) for the Secretary of State to make by order provision to enforce Community obligations and restrictions is extended to English and Welsh fishing boats anywhere in the world and to persons of a specified description on board fishing boats anywhere in the world. Persons on board Scottish or Northern Ireland fishing boats are excluded.
658. Section 30 is further amended so that an Order in Council may be made extending the application of section 30(1) and (2) to any Isle of Man or Channel Islands fishing boat anywhere in the world except in the territorial waters of the Isle of Man and the Channel Islands.
Administrative penalty schemes
Clause 284: Administrative penalty schemes
659. This clause introduces powers to apply Fixed Administrative Penalties (FAPs) to domestic fisheries offences, i.e. offences which do not originate in Community law. The vast majority of fisheries offences are breaches of Community law for which we can already introduce FAPs using existing powers under section 30(2) of the Fisheries Act 1981.
660. The FAP scheme will complement the existing criminal system rather than replace it, as a person will be under no obligation to pay the penalty if he wishes to have the matter dealt with in court in the usual way. The scheme will be used to address fisheries offences such as offences under the Sea Fisheries Act 1868, the Sea Fish (Conservation) Act 1967, the Sea Fisheries Act 1968, the Fishery Limits Act 1976 and the British Fishing Boats Act 1983, including any offences in any of the orders made under these Acts.
661. The appropriate national authority, the Welsh Ministers for Wales and the Defra Secretary of State in all other cases, is given the power to make provision by order for the issuing of penalty notices for domestic fisheries offences. The clause sets out detail of the provision which may be made in the order, including the content of the penalty notice, who may issue a notice, the minimum and maximum amount of the penalty and matters as to payment.
Crown application
Clause 285: Application to the Crown
662. The provisions in Chapters 1 to5 of this Part apply to the Crown. Contravention of any provision of Chapter 5 will not make the Crown criminally liable.
PART 9: COASTAL ACCESS
The coastal access duty
Clause 286: The coastal access duty
663. This clause imposes a duty (described by subsection (4)(a) as the “coastal access duty”) on the Secretary of State and Natural England. Subsections (2) and (3) describe the duty by reference to two objectives.
664. Subsection (2) contains the first objective which is that there is a route around the whole of the English coast consisting of one or more long-distance routes and available to the public for recreational journeys on foot or by ferry (“the English coastal route”).
665. Subsection (3) contains the second objective which is that there is a margin of land along the length of the coast which the public can enjoy. It requires a margin to exist “in association with” the route, and provides that, subject to the exception mentioned below, the margin of land is to be “accessible to the public for the purposes of its enjoyment by them in conjunction with that route or otherwise”. This makes it clear that the route and the margin are linked objectives, but also that the margin does not have to be accessed directly from the route. It may be accessed from another part of the margin (for example by walking along the foreshore to reach an isolated beach) or using a right of access under other legislation, such as a public right of way, or by other means. The exception to the requirement for the margin to be accessible to the public is the case where the land falls within any category of “excepted land” listed in Schedule 1 to the Countryside and Rights of Way Act 2000 (“the CROW Act”), other than a category of land which is accessible to the public by virtue of any enactment or rule of law (as to which see the note to subsection (5)(c)). This formulation enables the margin to be proposed and established without the need to describe individually every area which is not accessible to the public. This is because Schedule 1 to the CROW Act (which may be amended by an order under section 3A of that Act to be inserted by this Bill) sets out general categories of land to which there is no access.
666. Subsection (4)(b) allows Natural England and the Secretary of State to fulfil the duty in stages over a number of years. This means that the duty can be fulfilled on certain parts of the coast before other parts, and there is no set time limit for completion of the duty.
667. Subsection (5) establishes that land will only be considered accessible to the public (as specified in the objectives) if it is accessible in certain ways. Subsection (5)(a) provides that one way in which it will be considered accessible to the public is if it is accessible by virtue of section 3A of the CROW Act. This means that, for land to be accessible to the public under subsection (5)(a), access must be available under the right of access conferred by section 2(1) of the CROW Act, and this must be by virtue of it being coastal margin as defined in the new section 3A of the CROW Act (see clause 291). So land which is accessible under the CROW Act but which is not coastal margin will not fulfil the duty. The reason for this distinction is that certain aspects of the management regime for access land under the CROW Act may differ according to whether the land is coastal margin or other access land. Subsection (5)(a) goes on to say that this is subject to any exclusions or restrictions imposed by or under Part 1 of the CROW Act. Part 1 of the CROW Act deals with access to the countryside, and allows relevant authorities to make directions excluding the right of access or restricting it in certain ways (for instance the right might be exercisable only along certain routes). So subsection (5)(a) makes it clear that such exclusions or restrictions can be disregarded for the purpose of deciding whether the route passes over land which is accessible to the public and there is a margin of land which is accessible to the public.
668. Subsection (5)(b) is another category of land which is considered accessible to the public for the purposes of this section. This is land which falls under any of the enactments or instruments specified in section 15 of the CROW Act. These enactments and instruments all provide for public access on foot and in some cases provide higher rights of access, for example on horseback. An example of this is section 193 of the Law of Property Act 1925, which regulates certain commons and has been held by the High Court the case of R v Secretary of State for the Environment ex parte Billson 12 to provide rights on horseback.
669. Subsection (5)(c) provides that land will be considered accessible to the public where it is excepted land under the CROW Act (certain types of land set out in Schedule 1 to that Act), but only where it is accessible to the public by virtue of any other enactment or rule of law. The most common situation where this may apply is where the coastal route goes along a public highway. In order to avoid having two different access regimes applying to public highways, it is expected that the public highways will become a category of excepted land under the CROW Act as far as the coastal margin is concerned. Subsection (5)(c) therefore allows the English coastal route to follow a public highway, for example through built-up areas. However this does not apply to land which is accessible to the public by virtue of a military lands byelaw as defined in subsection (8) (one of the categories of excepted land) and such land can therefore never form part of the route.
670. Subsection (6) makes it clear that the duty of Natural England and the Secretary of State to exercise their relevant functions regarding the second objective (making available a margin of land along the length of the English coast) refers to making land accessible to the public by means of section 3A of the CROW Act, as described in subsection (5)(a). Land within the margin may be accessible to the public under the mechanisms described in subsections (5)(b) and (c). However, if land is not accessible to the public, the only mechanism which Natural England and the Secretary of State are required to use to make it so accessible is the mechanism described in subsection (5)(a), (provision under section 3A of the CROW Act), although they may decide to use other mechanisms. This reflects the fact that the legislation envisages that so far as any new right of access needs to be created to provide the coastal margin, the principal means of creating it is by way of an order under section 3A of the CROW Act (as inserted by clause 291 of the Bill).
671. Subsection (7) sets out what constitutes a journey by ferry for the purposes of the first objective, and makes it clear that the ferry does not have to be operating at all times of the day or year.
Clause 287: General provisions about the coastal access duty
672. This clause sets out the requirements imposed on Natural England and the Secretary of State as regards considerations that they have to take into account in discharging the coastal access duty. Subsections (2) and (3) set out these considerations.
673. Subsection (2) provides that they must have regard to:
a) the safety and convenience of those using the English coastal route;
b) the desirability of that route adhering to the periphery of the coast and providing views of the sea; and
c) the desirability of ensuring that so far as reasonably practicable interruptions to that route are kept to a minimum.
674. Subsection (3) provides that they must aim to strike a fair balance between the interests of the public in having rights of access over land and the interests of any person with a relevant interest in the land.
675. Subsection (4) sets out which people are treated as having a “relevant interest in the land” for the purposes of subsection (3) (with the intention of striking a fair balance between the interests of the public and those with a relevant interest in land). It says that a person has a relevant interest in land if the person-
a) holds an estate in fee simple absolute;
b) holds a term of years absolute in the land; or
c) is in lawful occupation of the land.
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