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Statutory Instruments of the Scottish Parliament
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2004 No. 392

SEA FISHERIES

The Sea Fishing (Enforcement of Community Satellite Monitoring Measures) (Scotland) Order 2004

  Made 13th September 2004 
  Laid before the Scottish Parliament 14th September 2004 
  Coming into force 6th October 2004 

The Scottish Ministers, in exercise of the powers conferred by section 30(2) of the Fisheries Act 1981[1], and of all other powers enabling them in that behalf, hereby make the following Order:

Citation, commencement and extent
     1.  - (1) This Order may be cited as the Sea Fishing (Enforcement of Community Satellite Monitoring Measures) (Scotland) Order 2004 and shall come into force on 6th October 2004.

    (2) Subject to paragraph (3), this Order shall extend to Scotland and the Scottish zone, and insofar as it extends beyond Scotland and the Scottish zone, it does so only as a matter of Scots law.

    (3) Nothing in paragraph (2) shall be treated as prejudicing the effect of section 30(2A) of the Fisheries Act 1981[2] in relation to, or for purposes incidental to, any provision in this Order which creates an offence.

Interpretation
     2.  - (1) In this Order-

    (2) A logbook, declaration or document or any required information includes, in addition to a logbook, declaration or document or required information in writing-

    (3) Without limiting the generality of articles 4(2)(b) and 5(2), a satellite-tracking device shall not be regarded as operational for the purposes of those articles during any time when it is failing to operate in accordance with article 6(2) below.

Application of articles 4, 5, 6 and 7
     3.  - (1) Subject to paragraph (2), articles 4, 5, 6 and 7 of this Order apply to a fishing boat specified in those articles-

    (2) Those articles do not apply to a fishing boat specified in them where that fishing boat is used exclusively for exploitation of aquaculture and operates exclusively inside the baselines from which the territorial sea of the United Kingdom is measured.

Installation and maintenance of a satellite-tracking device
     4.  - (1) This article applies to-

    (2) A satellite-tracking device shall-

on a boat to which this article applies.

    (3) A satellite-tracking device installed on board a boat to which this article applies shall-

Prohibition against leaving port without operational satellite-tracking device on board
     5.  - (1) This article applies to-

    (2) Subject to article 7(6), a boat to which this article applies shall not leave a port without an operational satellite-tracking device installed on board.

    (3) When a boat to which this article applies is in port the satellite-tracking device installed on board may be switched off only -

Transmission of required information
     6.  - (1) This article applies to-

    (2) Subject to article 5(3), a satellite-tracking device installed on board a boat to which this article applies shall transmit the required information-

    (3) A Scottish fishing boat or a relevant British fishing boat to which this article applies shall transmit the required information to the Fisheries Monitoring Centre of the United Kingdom.

Technical failure or non-functioning of the satellite-tracking device
     7.  - (1) This article applies to-

    (2) In the event of a technical failure or non-functioning of the satellite-tracking device fitted on board a boat to which this article applies the master or owner of that boat or their representative shall communicate the up-to-date current geographical position of that boat to the relevant Fisheries Monitoring Centre specified in article 8(1).

    (3) A-

    (4) The information specified in paragraph (2) shall be communicated-

    (5) The times specified for the purposes of sub-paragraphs (a) and (b) of paragraph (4) are-

    (6) A boat to which paragraph (2) has applied shall not leave a port unless authorised to do so by a British sea-fishery officer.

    (7) In this article-

Fisheries monitoring centres
     8.  - (1) The Fisheries Monitoring Centres specified for the purposes of articles 5(3)(a) and 7(2) are-

    (2) In this article "another Member State" means a Member State of the European Community other than the United Kingdom.

Offences
     9.  - (1) Where there is a contravention of, or failure to comply with, any provision of article 4, 5, 6 or 7 the owner, charterer (if any) and the master are each guilty of an offence.

    (2) Where any person in any way-

that person, along with the owner, charterer (if any) and the master of the boat, is guilty of an offence.

    (3) Subject to article 12(3)(g), where any person in any way-

that person, along with the owner, charterer (if any) and the master of the boat, is guilty of an offence.

Penalties
     10. A person guilty of an offence under article 9 of this Order is liable-

Recovery of fines
     11.  - (1) Without prejudice to section 221 of the Criminal Procedure (Scotland) Act 1995[15], where a court has imposed a fine on the master, owner, charterer or any other person who is convicted by it of an offence under this Order or under any equivalent provision, the court may for the purposes of recovering the fine-

    (2) The court shall not issue a warrant under paragraph (1)(b) above without first affording the owner of the boat, its gear or catch liable to be included in the warrant an opportunity to be heard.

    (3) A warrant issued under paragraph (1)(b) above, whatever the amount of the fine imposed, may be executed in the same manner as if the proceedings were on an extract decree of the sheriff in a summary cause.

    (4) Where, in relation to a fine in respect of an offence under any equivalent provision, a transfer of fine order under section 222 of the Criminal Procedure (Scotland) Act 1995, section 90 of the Magistrates' Courts Act 1980[16] or article 95 of the Magistrates' Courts (Northern Ireland) Order 1981[17] specifies a court of summary jurisdiction in Scotland this article shall apply as if the fine were a fine imposed by that court.

Powers of British sea-fishery officers in relation to fishing boats
     12.  - (1) For the purpose of enforcing this Order or any equivalent provision a British sea-fishery officer may exercise the powers conferred by this article in relation to-

    (2) The officer may go on board the boat, with or without persons assigned to assist the officer in the duties of that officer, and for that purpose may require the boat to stop and do anything else which will facilitate the boarding of, or the disembarkation from, the boat.

    (3) The officer may require the attendance of the master and other persons on board the boat and may make any examination and inquiry which appears to the officer to be necessary for the purpose mentioned in paragraph (1) and, in particular-

    (4) Where it appears to a British sea-fishery officer that an offence under this Order or under any equivalent provision has at any time been committed, the officer may-

and where such an officer detains or requires the detention of a boat he shall serve on the master a notice in writing stating that the boat will be or is required to be detained until the notice is withdrawn by the service on the master of a further notice in writing signed by a British sea-fishery officer.

Protection of officers
     13. A British sea-fishery officer or a person assisting such an officer by virtue of article 12(2) of this Order shall not be liable in any civil or criminal proceedings for anything done in the purported exercise of the powers conferred by virtue of article 12 of this Order if the court is satisfied-

Obstruction etc
     14.  - (1) Any person who-

is guilty of an offence.

    (2) A person guilty of an offence under paragraph (1) is liable-

Provisions as to offences and proceedings
     15.  - (1) Where any offence under this Order, or under any equivalent provision, committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a director, manager, secretary or other similar officer of the body corporate, or a person purporting to act in any such capacity, that person, as well as the body corporate, shall be guilty of the offence and liable to be proceeded against and punished accordingly.

    (2) Where any offence under this Order, or under any equivalent provision, committed by a partnership is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner, that partner, as well as the partnership, shall be guilty of the offence and liable to be proceeded against and punished accordingly.

    (3) Where any offence under this Order, or under any equivalent provision, committed by an unincorporated association (other than a partnership) is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any officer of the association, that officer, as well as the association, shall be guilty of the offence and liable to be proceeded against and punished accordingly.

Admissibility in evidence of logbooks and other documents
     16. Any-

of Regulation 2847/93 and any required information received by a Fisheries Monitoring Centre shall, in any proceedings for an offence under this Order or under any equivalent provision, be received in evidence without being produced or sworn to by any witness and shall be sufficient evidence of the matters stated therein or appearing therefrom.

Revocations and saving
     17. The Sea Fishing (Enforcement of Community Satellite Monitoring Measures) (Scotland) Order 2000[18] is hereby revoked.


ROSS FINNIE
A member of the Scottish Executive

St Andrew's House, Edinburgh
13th September 2004


EXPLANATORY NOTE

(This note is not part of the Order)


This Order provides for the enforcement of Commission Regulation (EC) No. 2244/2003 laying down detailed provisions regarding satellite-based Vessel Monitoring Systems ("Regulation 2244/2003"). The Order applies to Scotland and the Scottish zone, and in so far as it applies beyond Scotland and the Scottish zone, it does so only as a matter of Scots law (article 1).

The Order specifies four categories of boats to which the obligations under Regulation 2244/2003 apply: Scottish fishing boats (as defined in article 2) wherever they may be, and relevant British fishing boats, Community fishing boats and third country fishing boats (as each of those terms is defined in article 2) within the Scottish zone.

Articles 4, 5, 6 and 7 apply only to boats of the categories specified by those articles which measure more than 18 metres in overall length and, as from 1st January 2005, more than 15 metres in overall length (article 3). They do not apply where such a boat falls within the ambit of article 3(2).

All four categories of boats are required to have a satellite-tracking device ("device") installed on board which does not permit the input or output of false positions; which is not capable of being manually over-ridden; and which shall be operational at all times (article 4).

Scottish fishing boats, wherever they may be, and relevant British and Community fishing boats within the Scottish zone are prohibited from leaving a port without an operational device installed on board. Such devices may be switched off when the boat is in port only if prior notification is given to the relevant Fisheries Monitoring Centre or centres specified in article 8(1) and the required information (as defined in article 2) next transmitted is the same as that last transmitted (article 5).

Article 2 makes provision with regard to the meaning of "operational" for the purposes of articles 4 and 5.

A device on board any of the four categories of boats must transmit the required information at least once every hour, or every two hours if article 6(2)(b)(i) or (ii) is applicable. Scottish fishing boats, wherever they may be, and relevant British fishing boats within the Scottish zone must transmit the required information to the Fisheries Monitoring Centre of the United Kingdom (article 6(3)).

In the event of a technical failure or non-functioning (as defined in article 7(7)) of a device on board any of the four categories of boats, the master or owner of the boat, or their representative, must communicate the up-to-date geographical position of that boat to the relevant Fisheries Monitoring Centre or Centres specified in article 8(1) (article 7). Article 7(3) specifies, by reference to provisions of Regulation 2244/2003, the means of communication that may be used, depending upon the category of boat. Article 7(4) specifies the time from, and the intervals at, which the up-to-date geographical position must be communicated, depending upon the category of boat. A boat to which article 7(2) has applied shall not leave port without authorisation from a British sea-fishery officer to do so (article 7(6)).

Article 9 creates offences in respect of breaches of the provisions of articles 4, 5, 6 and 7. It also creates offences in respect of altering the required information to be transmitted by, obstructing any antenna attached to, or interrupting the power supply to devices installed on board any fishing boat to which any provision of the Order applies; in respect of removing such a device from such a boat; and in respect of destroying, damaging, rendering inoperative or otherwise interfering with such a device.

Penalties for contravention of the offences created by article 9 are set out in article 10. The Order also provides powers for the recovery of fines (article 11) and for the evidential status of certain documents (article 16).

For the purpose of enforcing the Order, British sea-fishery officers are given the powers set out in article 12. Article 14 creates offences in respect of the obstruction of British sea-fishery officers.

Article 17 revokes the Sea Fishing (Enforcement of Community Satellite Monitoring Measures) (Scotland) Order 2000 (S.S.I. 2000/20).

The Regulatory Impact Assessment in relation to the application of the satellite-based vessel monitoring system to Scottish fishing boats has been prepared and placed in the Scottish Parliament Information Centre. Copies can be obtained from the Scottish Fisheries Protection Agency, Pentland House, 47 Robb's Loan, Edinburgh, EH14 1TW.

Notes:

 [1] 1981 c.29; relevant modifications are contained in the Scotland Act 1998 (Functions Exercisable in or as Regards Scotland) Order 1999 (S.I. 1999/1748), article 5 and the Scotland Act 1998 (Modification of Functions) Order 1999 (S.I. 1999/1756), articles 3, 5 and 6. The functions of the Secretary of State were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998 (c.46). See section 30(3) of the 1981 Act for definitions of "enforceable Community restriction", "enforceable Community obligation" and "the Ministers". Section 30 has effect in relation to Scotland as modified by section 30(5), inserted by the Scotland Act (Consequential Modifications) (No. 2) Order 1999 (S.I. 1999/1820), Schedule 2, paragraph 68(5)(b).back

[2] Section 30(2A) was inserted by S.I. 1999/1820, Schedule 2, paragraph 68(5)(a).back

[3] 1995 c.21.back

[4] O.J. No. L261, 20.10.93, p.1.back

[5] O.J. No. L301, 14.12.95, p.1.back

[6] O.J. No. L301, 14.12.95, p.35.back

[7] O.J. No. L338, 28.12.96, p.12.back

[8] O.J. No. L102, 19.4.97, p.1.back

[9] O.J. No. L304, 7.11.97, p.1.back

[10] O.J. No. L356, 31.12.97, p.14.back

[11] O.J. No. L358, 31.12.98, p.5.back

[12] O.J. No. L333, 20.12.03, p.17.back

[13] 1998 c.46. The sea within British fishery limits (that is, the limits set by or under section 1 of the Fishery Limits Act 1976 (c.86)) which is adjacent to Scotland is determined by the Scottish Adjacent Waters Boundaries Order 1999 (S.I. 1999/1126).back

[14] Cmnd. 2586.back

[15] 1995 c.46.back

[16] 1980 c.43.back

[17] S.I. 1981/1675.back

[18] S.S.I. 2000/20.back


ISBN 0 11069238 1


  © Crown copyright 2004

Prepared 17 September 2004

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URL: http://www.bailii.org/scot/legis/num_reg/2004/20040392.html