SECTION 5: MODERNISING ENFORCEMENT PROVISIONS
107. We intend to make improvements to enforcement provisions in two specific areas. The first is a series of improvements in the area of aquaculture and wider marine-related offences. The second relates to specific changes that apply in relation to the enforcement of sea fisheries regulations only.
108. The proposed improvements on wider marine enforcement are:-
- making certain aquaculture offences strict liability;
- providing for Fixed Penalty Notices as alternatives to prosecution for aquaculture and other marine offences;
- increasing the maximum sum that can be levied under a Fixed Penalty Notice.
Strict Liability for Certain Offences Related to Aquaculture Operations
109. Generally speaking, taking enforcement action where there is suspected non-compliance involves investigators establishing through the collection of evidence what happened and, where this behaviour constitutes a criminal offence, who was directly responsible and criminally liable for the illegal activity.
110. The nature of aquaculture activity means that, for logistical and other reasons, it may not always be possible to determine who was directly responsible and ought to be held liable for apparent illegal activity. The regulatory bodies concerned have experience of situations (related to the formerly Food and Environment Protection Act 1985 (Part 2), now Marine Licensing arrangements) where this has acted as a barrier to appropriate enforcement action, with evident implications for our marine management responsibilities.
111. A potentially simpler and more effective model is one where strict liability for any non compliance rests with persons in a particular position or capacity. The practical effect of this is that for relevant offences, investigators need only to pursue one avenue of enquiry to gather sufficient evidence to establish what happened, as there would be no requirement to demonstrate intent on the part of the accused. Where evidence proves that an offence has been committed, certain persons are guilty of that offence by virtue of the capacity or office they hold at the time of the offence. We are aware there are relatively few strict liability offences currently in Scots law, as strict liability for offences alters the normal rules relating to the creation of offences by removing the need for prosecutors to demonstrate intent on the part of the accused. However, strict liability for regulatory non-compliance is commonly applied in marine matters in relation to commercial fishing activity where criminal liability normally rests with the master and owner of the fishing vessel concerned.
112. We therefore believe it would be appropriate to apply strict liability arrangements for offences related to breach of requirements for, or conditions of, Marine Licensing requirements (under the Marine (Scotland) Act 2010), insofar as they apply to aquaculture operations - and, potentially, in other, similar situations.
Q Do you agree that strict liability criteria should apply -where they are capable of being applied - for offences related to Marine Licensing requirements insofar as they apply to aquaculture operations and, potentially, in other situations?
Widening the Scope of Fixed Penalty Notices
113. There have been a number of major and significant reforms to the criminal justice process in Scotland in recent years. The Criminal Proceedings etc (Reform) (Scotland) Act 2007 is an example of such reform, the origins of which can be found in a review of the summary justice system carried out by an independent committee chaired by the late Sheriff Principal John McInnes. The McInnes Report brought forward recommendations that are at the core of the reforms contained within the 2007 Act including extending the range of alternatives to prosecution that can be offered.
114. In a wider UK context, there had been the earlier reports looking principally at regulatory justice which were carried out by Sir Philip Hampton in 2004, and Professor Richard Macrory in 2006.
115. The Hampton Review proposed that any penalty regime should be based on the risk of re-offending and the impact of the offence, with a sliding scale of penalties that are quick and easier to apply for most breaches, with tougher penalties for persistent rule breakers. That recommendation was subsequently considered by Professor Richard Macrory in his report which looked at making sanctions effective. Both the Hampton and Macrory reports are concerned with better regulation and achieving outcomes in a way that minimises the burdens imposed on businesses.
116. Macrory's vision for a penalties system was one which breaks with the tradition of relying on the criminal courts as the default means of punishing business non-compliance with regulatory obligations. He urged that regulators should adopt a transparent system of sanctions that would permit a range of regulatory offences to be handled other than by means of criminal prosecution. Improving the ability of regulators to apply appropriate sanctions ought to improve overall compliance and add credibility to the regulatory regime and means that minor breaches are treated as such.
117. Section 25 of the Aquaculture and Fisheries (Scotland) Act 2007, makes provision for enforcement officers to issue Fixed Penalty Notices (" FPNs") in certain circumstances as an alternative to prosecution in the criminal courts. At present an FPN may only be offered as an alternative to prosecution for offences under sea fisheries enactments. We propose to widen the scope of offences for which FPNs can be used to include all marine, aquaculture and other regulatory issues for which Marine Scotland has a compliance, monitoring and enforcement role. This will mean that enforcement officers have access to a common set of options to deal with non-compliance.
118. The practical effect of the proposal is that, where appropriate, offenders may be given the option of paying a fixed financial penalty as an alternative to a report being submitted to the Procurator Fiscal for prosecution. If the fixed penalty is paid within the period given, then that is the end of the matter. The fixed penalty is not a criminal conviction nor can it be treated as such. Of course, the offender does not need to accept and pay the fixed penalty. By not paying the fixed penalty within the deadline given they can effectively elect to have the matter dealt with in the criminal courts. The advantage for businesses within the fixed penalty system is certainty around what the punishment will be, and that the matter can be dealt with quickly. Operators can reduce costs normally associated with the criminal justice process including legal costs and the time required to attend court in person. Offenders can also avoid acquiring a criminal record, and in certain circumstances the possibility of a custodial sentence, if they are not prosecuted in the criminal courts.
119. The increased use of fixed financial penalties will also help free up time in the criminal courts for more serious offences.
Q Do you agree that we should extend the use of fixed financial penalties as alternatives to prosecution in relation to marine, aquaculture and other regulatory issues for which Marine Scotland has responsibility?
120. We also think there is a case to increase the maximum penalty which can be offered through a fixed penalty and, through making this change, the number of offences that can be dealt with by way of an FPN.
121. The maximum penalty that can be offered currently is capped at a sum not exceeding 80% of level 4 on the standard scale (currently £2,500). The practical effect of this currently is a maximum penalty of £2,000. We consider that while this level of penalty may be sufficiently punitive in certain circumstances, it may not be appropriate or represent a sufficient deterrent for more serious offences or in the case of, for example, large businesses where the benefits of non-compliance may significantly outweigh the potential penalty.
122. We thereforepropose increasing the maximum penalty to a sum equal to twice level 5 on the standard scale (£10,000). This does not mean that all fixed penalties would be set at £10,000. We would be able to prescribe, through a statutory instrument, different scales of fixed penalty for each marine regulatory area. At present, for example, a range of fixed penalties is used in relation to sea fisheries set at £250, £500, £1,000, and £2,000. Fixed penalties used for sea fisheries offences are capable of being doubled up in certain circumstances, to deal with repeat offending. So someone who has already been given a fixed penalty for say £250 and commits a further infringement of the same rule will trigger a doubling of the second fixed penalty to £500. Limits may also be imposed on the number of fixed penalties that may be offered before the matter must be referred to the Procurator Fiscal. At present, for example, in relation to sea fisheries offences, no more than two fixed penalties can be offered for the same type of infringement meaning that the third infringement automatically requires the submission of a report to the Procurator Fiscal. In this way the criminal courts are preserved for only the most serious offences or cases involving habitual repeat offending.
Q Do you agree that we should increase the maximum sum that can be levied through a fixed penalty notice to £10,000?
Q Are there particular regulatory areas that merit a higher or lower maximum sum?
Changes to Sea Fisheries Legislation
123. We also propose to make some amendments to sea fisheries legislation. These relatively minor changes are intended to improve the current arrangements. They will also further align fisheries legislation with that elsewhere in the UK.
124. The proposals, which are discussed in greater detail below, are to:-
- amend section 30(1) of the Fisheries Act 1981, insofar as it relates to Scottish vessels and nationals, to create offences and provide enforcement powers for the enforcement of EU fishing restrictions and obligations beyond the 200 mile limit;
- provide specific powers to detain vessels for the purposes of court proceedings;
- provide specific powers to allow enforcement officers to dispose of property and forfeit prohibited items;
- provide enforcement officers with the power to inspect objects in the marine environment;
- amend Section 1 of the Sea Fisheries (Shellfish) Act 1967 to apply that Act to all shellfish specified in an Order; and
- amend paragraph 4(2) of Schedule 1 to the Sea Fisheries (Shellfish) Act 1967 to remove the reference to actions by Scottish Ministers in light of material concern.
Enforcement of EU Obligations Beyond British Fisheries Limits
125. Section 30(1) of the Fisheries Act 1981 creates offences and gives powers to inspectors for the enforcement of contraventions of EU restrictions and obligations on fishing. It provides for effective enforcement of EU obligations on sea fishing where an order has not been made under Section 30(2) of the Act. In its present form, the scope of section 30(1) is confined to activity which takes places within British Fisheries Limits. Section 30(1) was amended as regards England and Wales by the Marine and Coastal Access Act 2009 to create offences for English and Welsh vessels and nationals beyond British Fisheries Limits. We propose to amend section 30(1) insofar as it relates to Scottish vessels to create offences and provide enforcement powers for the enforcement of EU fishing restrictions and obligations beyond the 200 mile fisheries limit. The proposed amendment will also mean that fewer statutory instruments are required in future to transpose EU restrictions and obligations on commercial fishing.
126. This proposal mirrors changes that have already been made for England and Wales through the Marine and Coastal Access Act 2009.
127. If the proposed changes are not made, there is a risk that the Scottish Government may not fully meet obligations under the Common Fisheries Policy to control the activity of Scottish vessels engaged in commercial fishing activity.
Q Do you agree that we should amend section 30(1) of the Fisheries Act 1981 as proposed?
Powers to Detain Vessels in Port
128. Sea fisheries enforcement officers have the power in certain circumstances to direct a vessel to port and order the master of the vessel to detain the vessel in port while they make any necessary enquiries.
129. This power is most commonly used when non-compliant foreign vessels are encountered. Where non-compliance is detected on a Scottish or other UK vessel, evidence of the infringement is gathered at the scene where this is possible and the facts are then subsequently reported to the Procurator Fiscal. Vessels are only escorted to port where evidence cannot be gathered at sea, for example where it might be necessary to weigh the catch. Where the Procurator Fiscal instigates criminal proceedings, the accused person is normally cited to appear in court on a given date. Where foreign vessels or individuals who live abroad are involved in the commission of offences, a rather different approach is required. Here, vessels are normally directed to port and detained whilst enquiries are made. Reports are 'fast tracked' to the Procurator Fiscal, and the accused person appears in the earliest possible court diet on a quasi-custody basis, while the relevant fishing vessel remains detained. The rationale for the detention is to avoid the vessel sailing and accused persons attempting to evade being brought to justice. There is ambiguity regarding the scope of existing statutory provisions to detain vessels beyond the point where a report has been submitted to the Procurator Fiscal.
130. We therefore propose to introduce a specific power to allow enforcement officers to detain a vessel in port to ensure that any suspect appears in court. This proposal mirrors changes that have already been made for England and Wales through section 279 of the Marine and Coastal Access Act 2009.
Q Do you agree that sea fisheries enforcement officers should be given specific power to allow vessels to be detained in port for the purposes of court proceedings?
Disposal of Property/Forfeiture of Prohibited Items
131. As a generality, sea fisheries enforcement officers have powers to seize evidence including nets and other fishing equipment. They do not, however, have any authority to dispose of such items unless they are forfeited by the courts and at the end of proceedings or, if no proceedings are taken, they may have to return property which would be illegal to use in commercial sea fisheries.
132. We propose to provide the necessary power to dispose of property or forfeit items which are of themselves illegal. The process will include any necessary safeguards. A practical example of this proposed power would see enforcement officers able to return under-sized lobsters to the sea where they may continue to grow, or to retain equipment used in the illegal practice of electro-fishing in coastal or marine waters which is prohibited under EU rules.
133. This proposal mirrors changes that have already been made for England and Wales through sections 270-278 of the Marine and Coastal Access Act 2009.
Q Do you agree that sea fisheries enforcement officers should be able to dispose of property seized as evidence when it is no longer required, or forfeit items which would be illegal to use?
Power to Inspect Objects
134. Enforcement powers currently available to sea fisheries enforcement officers are generally predicated around inspection scenarios involving vessels, vehicles or premises. There is a gap in enforcement powers when dealing with circumstances not involving a vessel, a vehicle, or relevant premises. Officers may encounter objects in the sea, or in harbours, or on the foreshore which clearly relate to sea fishing activity but they are not at that time associated with one of the inspection scenarios envisaged. An example of this is the many keep creels that are used by fishermen to store lobsters before they are taken to market or to processors to be sold. These may be encountered buoyed at sea, or within the confines or a harbour.
135. We propose to provide the necessary power to allow sea fisheries officers to examine relevant objects which are not directly associated with one of the three classic enforcement scenarios.
136. This proposal is similar to changes that have already been made for England and Wales through the Marine and Coastal Access Act 2009.
Q Do you agree that sea fisheries enforcement officers should have the power to inspect objects in the sea and elsewhere that are not obviously associated with a vessel, vehicle or relevant premises?
Sea Fisheries (Shellfish) Act 1967
137. We propose to make the application of the Sea Fisheries (Shellfish) Act 1967 clearer by ensuring that the Act applies to all shellfish as opposed to certain listed shellfish and by simplifying the role of Scottish Ministers in relation to the appointment of an inspector to undertake an inquiry into a proposed order. The amendments would make the use of the Act more straightforward in future without removing any safeguards. They would also bring the legislation into line with that in England and Wales.
Q Do you have any views on the proposals to amend the Sea Fisheries (Shellfish) Act 1967 to help make its application clearer?