Wild Salmon Strategy: Fisheries Management Scotland enforcement committee paper
Paper undertaking a review of enforcement powers, the offences and penalty regime for salmon poaching and other offences, aiming to increase penalties if necessary.
Annex 1
Section 1: Methods of fishing: salmon (Article 22 of the 2006 Order)
Description: Sets out the permissible methods of fishing for salmon in Scotland.
Current Penalty: A person found guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.
Proposed Approach: Increase penalties as follows: In line with the legislation set out in the introduction, adopt the principle that the maximum fine to be imposed shall be determined as if the person convicted had been convicted of a separate offence in respect of each salmon taken.
In addition to the above, either:
1. Increase the maximum fine to a fine not exceeding the statutory maximum (currently £10,000),
OR
2. Increase the maximum fine to £40,000 commensurate with other approaches to wildlife crime.
In addition, prohibit the use of nets and traps in inland waters, except under licence
Justification: The use of illegal methods and instruments are an integral feature of the majority of prosecution cases and the indiscriminate nature of many of these methods (for example gill nets which are effectively invisible to fish) mean that the severity of these methods on local populations can be devastating. Gill nets can also have a wider impact on other fauna, for example by capturing cetaceans, seabirds and otters.
Section 2: Methods of fishing: freshwater fish (Article 23 of the 2006 Order)
Section 2 (and article 23) states that ‘In any pond or loch where all the owners are agreed, a right of fishing may be exercised by net”. And “In any inland waters an owner or occupier may fish for or take freshwater fish, other than trout, by net or trap.”
Description: Sets out the permissible methods for fishing for freshwater fish.
Current Penalty: Any person who fishes for or takes freshwater fish in any inland waters except by rod and line shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 4 on the standard scale.
Proposed Approach: Increase penalties as follows: In line with the legislation set out in the introduction, adopt the principle that the maximum fine to be imposed shall be determined as if the person convicted had been convicted of a separate offence in respect of each salmon taken.
In addition to the above, either:
1. Increase the maximum fine to a fine not exceeding the statutory maximum (currently £10,000),
OR
2. Increase the maximum fine to £40,000 commensurate with other approaches to wildlife crime.
In addition, prohibit the use of nets and traps in inland waters, except under licence.
Justification: The use of illegal methods and instruments are an integral feature of the majority of prosecution cases and the indiscriminate nature of many of these methods (for example gill nets which are effectively invisible to fish) mean that the severity of these methods on local populations can be devastating. Gill nets can also have a wider impact on other fauna, for example by capturing birds and otters.
The provision in section 2 means that nets and traps can be deployed without licence by fishery owners at their discretion, and we believe that all such activity should only be permitted under licence so that it can be demonstrated that any netting and trapping is sustainable and will not affect protected species.
Section 5: Prohibition against using explosive and other noxious substances for the destruction or taking of fish (Article 26 of the 2006 Order)
Description: Prohibits the use of explosives, noxious substances or electrical devices with the intent to take or destroy fish.
Current Penalty: A person found guilty of an offence under this section shall be liable—(a) on summary conviction to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding 3 months or to both such fine and such imprisonment; and (b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 2 years or to both a fine and such imprisonment.
Proposed approach: Increase penalties as follows: In line with the legislation set out in the introduction, adopt the principle that the maximum fine to be imposed shall be determined as if the person convicted had been convicted of a separate offence in respect of each salmon taken.
In addition to the above, either:
1. Increase the maximum fine to a fine not exceeding the statutory maximum (currently £10,000),
OR
2. Increase the maximum fine to £40,000 commensurate with other approaches to wildlife crime.
Justification: These methods are indiscriminate, highly harmful to the environment and present risks to the public. From an environmental perspective, the use of these methods can cause widespread and indiscriminate destruction: for example, the use of compounds to take fish are well known and there are documented incidences in Scotland involving sodium cyanide (trade name Cymag) and cement compounds to kill fish. Such activity not only decimates fish stocks, but also invertebrates due to the effect on oxygen uptake in the water. These offences are at the most serious end of environmental crime.
Section 5A: Prohibition against using pike gags and certain keepnets (Article 24 of the 2006 Order – different approach)
Description: Prohibits the use of pike gags (a device used for the purpose of keeping the jaws of a fish open) and knotted and metallic keepnets.
Current Penalty: Any person who uses a pike gag in relation to the fishing for or taking of fish shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Proposed approach: No change suggested
Section 6: Fishing for salmon without right or permission (Article 27 of the 2006 Order)
Description: Requires any person to have the right, or legal permission, to fish.
Current Penalty: Any person who without legal right, or without written permission from a person having such right, fishes for or takes salmon in any waters, including any part of the sea within 1.5 kilometres of mean low water springs, shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Proposed approach: No change suggested in relation to salmon, but we believe there is a strong case to extend this provision to all species of freshwater fish.
Justification: Extending a requirement for all anglers to demonstrate that they have legal right or permission to fish for freshwater fish would ensure that there is a simple and clear legal position in Scotland’s inland waters. This will significantly improve the way fisheries are promoted and managed in Scotland, reduce confusion amongst anglers (particularly visitors) and will simplify fisheries enforcement. At present, the status of legal protection of fishing rights is inconsistently applied across Scotland, given that protection orders (POs) cover only parts of the country. Such a measure will also help deter unlawful fishing, which can be unsustainable and damaging to stocks. See also section 26 below. We are however aware that the granting of a PO is predicated on the basis of a demonstrable increase in fishing availability in return for statutory protection of fishing rights. A universal change to the legislation would need to consider how a balance could be struck between reasonable access and statutory protection of fishing rights.
Section 7: Illegal fishing by two or more persons acting together (Article 28 of the 2006 Order)
Description: Sets out penalties for illegal acts carried out by two or more persons. This links to sections 1, 2 and 6 of the 2003 Act.
Current Penalty: If two or more persons acting together do any act which would constitute an offence under section 1, 2 or 6 of this Act, every such person shall be guilty of an offence under this section, and liable (a) on summary conviction to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding 3 months or to both such fine and such imprisonment; and (b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 2 years or to both a fine and such imprisonment.
Proposed approach: Increase penalties as follows: In line with the legislation set out in the introduction, adopt the principle that the maximum fine to be imposed shall be determined as if the person convicted had been convicted of a separate offence in respect of each salmon taken.
In addition to the above, either:
1. Increase the maximum fine to a fine not exceeding the statutory maximum (currently £10,000),
OR
2. Increase the maximum fine to £40,000 commensurate with other approaches to wildlife crime.
Justification: Our desire to see this penalty increased recognises the impact of organised criminal activity by multiple persons and the associated damage to fish stocks.
Section 8: Taking of dead salmon or trout (Article 29 of the 2006 Order)
Description: Prohibits the taking or removal of dead salmon or trout.
Current Penalty: Any person (exceptions set out for water bailiffs and specified authorised persons) who takes or removes dead salmon or trout from any waters, including any part of the sea within 1.5 kilometres of low water mark, shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 4 on the standard scale.
Proposed approach: No change suggested
Section 9: Illegal possession of salmon or trout (Article 30 of the 2006 Order)
Current Penalty: Any person who is found in possession of any salmon or trout, or any instrument, explosive, poison or other noxious substance which could be used in the taking of salmon or trout, in circumstances which afford reasonable ground for suspecting that that person has obtained possession of such salmon or trout, or such instrument, explosive, poison or substance as the result or for the purpose of committing an offence under any of the provisions of sections 1, 2, 5, 6 or 7 of this Act, may be charged with unlawful possession as aforesaid of such salmon or trout, or of such instrument, explosive, poison or substance.
Proposed approach: No change required due to inherent links to other offences – see justification.
Justification: In light of the justifications given for increased penalties we have provided above for sections 1, 2, 5 and 7 and the fact that this offence is linked to these provisions, penalties for section 9 possession offences would increase as a result of any changes to the above provisions.
Section 10: Offences in relation to passage of salmon (Article 32 of the 2006 Order)
Description: Introduces an offence of preventing salmon from passing through any fish pass or taking salmon during its passage through that pass.
Current Penalty: Any person who does any act for the purpose of preventing salmon from passing through any fish pass or taking any salmon in its passage through the same, shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 4 on the standard scale.
Proposed approach: We recognise that there is some overlap between the 2003 Act and SEPA’s responsibilities here. We would advocate action on three fronts:
1. Increase the available penalties in the 2003 Act in line with our suggested approach to other significant offences.
2. Give SEPA a clear direction that maintenance of flows through fish passes in accordance with CAR licence conditions should be a priority for inspection and enforcement.
3. If SEPA do not have the resources to inspect and enforce against all licence conditions, ensure that the powers of water bailiffs are extended to enable offences relating to CAR licence conditions to be investigated, evidence taken and proceedings advanced where appropriate.
Justification: Free passage of fish is a crucial outcome of any management action to protect and restore salmon. There are many reasons why fish passes may be blocked, both to facilitate poaching activities, but also where blocking the fish pass allows more water to be diverted for another purpose with associated financial advantage. Through the previous regulations (Fish Passes & Screens Regulations 1994, repealed when the CAR system was introduced) water bailiffs had enforcement powers relating to fish passes and screens. We would like to see reinstatement of the enforcement powers with bailiffs. Proper deterrents and robust enforcement are crucial here, whether by water bailiffs, SEPA or preferably both working in a co-ordinated way. In terms of enforcement, areas where fish passage is impeded and where fish are subjected to additional illegal fishing pressure take up considerable enforcement resources.
We believe that a protocol should be developed to ensure a consistent approach is taken, and would involve the relevant enforcement agencies, including SEPA and Police Scotland.
Section 11: Fishing in waters where fishing rights owned by one person (Article 33 of the 2006 Order)
Description: This provision relates to fishing without right or legal permission in specific lochs or ‘stanks’ in which the fishing rights are owned by one person
Current Penalty: Any person who without legal right, or without permission from a person having such right, fishes in a proper stank or loch shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 1 on the standard scale.
Justification: This is an example of the inconsistent approach inherent in the 2003 Act. Section 6 makes it a criminal offence for fishing for salmon without permission (level 4 on the standard scale), section 11 makes it a criminal offence to fish without permission where rights are owned by one person (level 1 on the standard scale) and section 12 makes it a criminal offence to contravene a protection order (level 3 of the standard scale). As highlighted earlier, fishing for freshwater fish without permission is not a criminal offence, unless a protection order is in place, so recourse must be sought in the civil courts.
Section 12: Contravention of protection order (Article 34 of the 2006 Order)
Description: Protection orders allow protection of freshwater fish where there would also be a significant increase in the availability of fishing for freshwater fish.
Current Penalty: Any person who fishes for or takes freshwater fish in contravention of a prohibition contained in a protection order made under section 48 of this Act shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Justification: This is an example of the inconsistent approach inherent in the 2003 Act. Section 6 makes it a criminal offence for fishing for salmon without permission (level 4 on the standard scale), section 11 makes it a criminal offence to fish without permission where rights are owned by one person (level 1 on the standard scale) and section 12 makes it a criminal offence to contravene a protection order (level 3 of the standard scale). As highlighted earlier, fishing for freshwater fish without permission is not a criminal offence, unless a protection order is in place, so recourse must be sought in the civil courts.
Section 13: Weekly close time for salmon (Article 35 of the 2006 Order)
Description: Defines the weekly close time for salmon.
Current Penalty: Any person who contravenes this section shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 4 on the standard scale.
Proposed approach: No change suggested.
Section 14: Fishing for salmon during annual close time (Article 37 of the 2006 Order)
Description: Defines the annual close time for salmon, and the process by which fishing is allowed within the close time by rod and line.
Current Penalty: Subject to subsection (2) below, any person who fishes for or takes salmon during the annual close time within the meaning of section 37 of this Act shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 4 on the standard scale.
Proposed approach: No change suggested
Section 15: Removal of boats and nets during annual close time (Article 38 of the 2006 Order)
Description: Requires proprietors and occupiers of net fisheries to remove boats and nets within 36 hours of the commencement of the annual close time.
Current Penalty: Any proprietor or occupier who fails to comply with the duty imposed by subsection (1) or, as the case may be, (2) above shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 4 on the standard scale.
Proposed approach: No change suggested
Section 16: Buying and selling salmon in close time (Article 39 of the 2006 Order)
Description: Prohibits the purchase, sale and possession of salmon during the period when the annual close time is in force in every salmon fishery district and the River Tweed.
Current Penalty: Any person who buys, sells, exposes for sale or is in possession of, any salmon taken within the limits of this Act during the period when the annual close time is in force in every salmon fishery district and in the River Tweed, shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Proposed approach: No change suggested
Section 17: Annual close time for trout (Article 40 of the 2006 Order)
Description: Prohibits fishing for, taking or possession of brown trout from 7 October to 14 March inclusive.
Current Penalty: Subject to subsections (3) and (4) below, any person who, during the annual close time for trout—
(a)fishes for or takes trout in any inland waters; or
(b)is in possession of trout,
shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Proposed approach: No change suggested
Section 17A: Weekly close time for freshwater fish
Description: This is an order-making power to specify a weekly close time for freshwater fish.
Current Penalty: Any person who contravenes an order made under this section shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Proposed approach: No change suggested
Section 17B: Annual close time for freshwater fish other than trout
Description: This is an order-making power to specify a weekly close time for freshwater fish other than trout.
Current Penalty: Subject to subsections (4) and (5) below, any person who, during the annual close time specified by virtue of subsection (1) in relation to a species of fish—
(a)fishes for or takes such fish in any inland waters; or
(b)is in possession of such fish,
shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Proposed approach: No change suggested
Section 18: Unclean salmon (Article 41 of the 2006 Order)
Description: Prohibits the fishing for, taking, buying, selling or possession of unclean or unseasonable salmon.
Current Penalty: Any person who—
(a)wilfully takes or fishes for; or
(b)buys, sells, exposes for sale or is in possession of,
any unclean or unseasonable salmon shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Proposed approach: Repeal this section and replace with alternative measures.
Justification: The offence of taking ‘unclean or unseasonable salmon’ is considered to be unworkable. There is no clear definition of what is unclean or unseasonable. We believe that this could be better managed by having a period of mandatory catch and release fishing towards the end of the season, designed in consultation with fishery managers on a district-by-district basis. This would be similar to the current spring measures. This would also avoid a situation where spring fish, protected from killing when they enter the river, are not killed when they become catchable again prior to spawning.
Section 19: Salmon roe (Article 42 of the 2006 Order)
Description: Sets out an offence of illegal possession of salmon roe.
Current Penalty: Any person who buys, sells, exposes for sale or is in possession of any salmon roe shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Proposed approach: Increase penalties as follows:
In line with the legislation set out in the introduction, adopt the principle that the maximum fine to be imposed shall be determined as if the person convicted had been convicted of a separate offence in respect of each salmon taken.
In addition to the above, either:
Increase the maximum fine to a fine not exceeding the statutory maximum (currently £10,000),
OR
1. Increase the maximum fine to £40,000 commensurate with other approaches to wildlife crime.
Justification: Salmon roe, after it is processed into a paste, can be used illegally as a bait for other species. To source the roe, it is necessary to kill gravid female salmon which will be close to spawning (see section 18, and associated issues). It is vital that fish close to spawning are protected from such illegal activity and it is unconscionable to kill gravid female fish just to source roe for bait. There may be a justification for extending the prohibition on the use of roe taken form other species of fish and this should be considered.
Section 20: Possessing salmon which have been illegally taken, killed or landed (Article 43 of the 2006 Order)
Description: Prohibits the possession of salmon which have been illegally taken, killed or landed
Current Penalty: A person found guilty of an offence under this section shall be liable—
(a)on summary conviction to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding 3 months or to both such fine and such imprisonment; and
(b)on conviction on indictment, to a fine or to imprisonment for a term not exceeding 2 years or to both a fine and such imprisonment.
Proposed approach: Increase penalties as follows:
In line with the legislation set out in the introduction, adopt the principle that the maximum fine to be imposed shall be determined as if the person convicted had been convicted of a separate offence in respect of each salmon taken.
In addition to the above, either:
1. Increase the maximum fine to a fine not exceeding the statutory maximum (currently £10,000),
OR
2. Increase the maximum fine to £40,000 commensurate with other approaches to wildlife crime.
Section 21: Packages of salmon or trout to be marked (Article 44 of the 2006 Order)
Description: Prohibits the consignment of salmon or trout in a package which is not marked conspicuously with the name ‘salmon’, ‘sea trout’ or ‘trout’ and does not show the name and address of the sender.
Current Penalty: Any person who—
(a)refuses to allow an authorised person to exercise a power conferred by this section; or
(b)obstructs any authorised person in the exercise of a power so conferred,
shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Proposed approach: No change suggested
Section 21A: Salmon carcass tagging
Description: Places a duty to tag carcasses of net-caught salmon and maintain weekly records of tagged fish and other specific information.
Current Penalty: A person who commits an offence under subsection (4) above—
(a)is liable on summary conviction to a fine not exceeding level 4 on the standard scale,
(b)may be convicted on the evidence of one person.
Proposed approach: No change suggested
Section 22: Size limit for selling trout (Article 45 of the 2006 Order)
Description: Prohibits the purchase, sale, consignment or export of trout under 20cm or any trout at any time between 1st September and 31st March inclusive.
Current Penalty: Subject to subsection (2) below, any person who purchases, sells, exposes for sale, consigns for sale, exports or consigns for export—
(a)trout under 20 centimetres in length; or
(b)any trout at any time between 1st September and 31st March both inclusive,
shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Proposed approach: No change suggested
Section 23: Young salmon and spawning beds (Article 46 of the 2006 Order)
Description: This section provides offences in relation to taking, possessing or selling juvenile fish, obstructing the passage of fish and disturbing spawning habitat and spawn.
Current Penalty: A person who commits an offence under this section may be convicted on the evidence of one witness, and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Proposed approach: Increase penalties as follows: In line with the legislation set out in the introduction, adopt the principle that the maximum fine to be imposed shall be determined as if the person convicted had been convicted of a separate offence in respect of each salmon taken.
In addition to the above, either:
1. Increase the maximum fine to a fine not exceeding the statutory maximum (currently £10,000),
OR
2. Increase the maximum fine to £40,000 commensurate with other approaches to wildlife crime.
Justification: The Wildlife and Countryside Act includes offences relating to the intentional or reckless damage, destruction or obstruction of access to any structure or place which any wild animal specified in schedule 5 uses for shelter or protection; or disturbs any such animal while it is occupying a structure or place which it uses for that purpose. This offence also carries a maximum fine of £40,000.
The activities identified in s23 can cause significant harm to fish populations, due to the sensitive nature of such sites and the vulnerability of both fish and the types of habitat which support spawning fish. It is critical that these sensitive life stages, and the habitats on which they depend are fully protected, and that the associated offences act as an appropriate deterrent.
Section 25: Fixed engines in the Solway
Description: Prohibits the placing or use of an uncertificated fixed engine in the Solway.
Current Penalty: Any person who, for the purpose of taking, or obstructing the free passage of, salmon, places or uses an uncertificated fixed engine in the Solway shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 4 on the standard scale.
Proposed approach: No change suggested
Section 26: Fishing without legal right in the Solway
Description: Prohibits fishing for any fish other than salmon in the Solway rivers without legal right or written permission.
Current Penalty: Any person who, without legal right, or without permission of a person having such right, takes or fishes for any fish other than salmon in any of the rivers, streams or other watercourses running into the Solway shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 1 on the standard scale.
Justification: See our comments on section 6 above. If section 6 were extended to all species, section 26 would be unnecessary.
Section 27: Exemption from certain offences in respect of acts done for scientific and other purposes: salmon (Article 48 of the 2006 Order)
Description: Subject to written consent, provides exemption from certain offences for persons undertaking scientific, conservation, protection or improvement work for salmon.
Current Penalty: A person who commits an offence under subsection (1B) above is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Proposed approach: No change suggested
Section 28: Exemption from certain offences in respect of acts done for scientific and other purposes: fish other than salmon (Article 49 of the 2006 Order)
Description: Subject to written consent, provides exemption from certain offences for persons undertaking scientific, conservation, protection or improvement work for fish other than salmon.
Current Penalty: A person who commits an offence under subsection (4) above is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Proposed approach: No change suggested
Section 30: Exemptions in relation to fish farming (Article 51 of the 2006 Order)
Description: Subject to Ministers consent, provides exemption from certain offences if the act or the omission takes place within, and in the course of the operation of, a fish farm.
Current Penalty: A person who commits an offence under subsection (2B) above is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Proposed approach: No change suggested
Section 31: Salmon fishing: general regulations (Article 52 of the 2006 Order)
Description: This is a regulation-making power to make a number of regulations, including weekly close time for salmon, cruives, construction and alteration of dams and construction and materials used for nets to catch salmon.
Current Penalty: Any person who contravenes a regulation made under this section shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 4 on the standard scale.
Proposed approach: Any person who contravenes a regulation made under this section shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 4 on the standard scale.
Section 33: Salmon fishing: regulations as to baits and lures (Article 53 of the 2006 Order)
Description: Provides powers to make regulations prohibiting the use of specified baits and lures for the purposes of the definition of “rod and line”
Current Penalty: A board which commits an offence under subsection (6B) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Proposed approach: No change suggested
Section 33A: Unauthorised introduction of fish into inland waters (Article 47 of the 2006 Order)
Description: Prohibits the intentional introduction of any live fish or spawn into inland waters without the consent of Scottish Ministers or the relevant district salmon fishery board.
Current Penalty: Any person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
1. Proposed approach: Increase the maximum fine to a fine not exceeding the statutory maximum, or
2. Increase the maximum fine to £40,000 commensurate with other approaches to wildlife crime.
Justification: The unauthorised introduction of fish species can have significant impacts on aquatic ecosystems, through for example, competition for food and habitat, and direct predation on fish species already present. Such actions can irrevocably change ecosystems and we believe that the maximum penalties for unauthorised fish introductions should be higher to act as a deterrent for actions which can have far-reaching consequences for native fish stocks.
Section 37: Annual close times for salmon (Article 36 of the 2006 Order)
Description: Sets out the continuous period for annual close times for all districts as not less than 168 days (153 days for the River Tweed), and allows Ministers to prescribe dates for close times and periods within which it is permitted to take salmon by rod and line.
Current Penalty: A board which or proprietor who commits an offence under subsection (3B) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Proposed approach: No change suggested
Section 38: Salmon conservation regulations (Article 54 of the 2006 Order)
Description: Power to make regulations across a number of areas, including collection of data from proprietors, prohibit baits and lures, prescribe annual close times and confer enforcement powers for the regulations.
Current Penalty: Any person who acts in contravention of regulations shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 4 on the standard scale.
Proposed approach: For S.38(7)(a), increase the penalty as follows:
In line with the legislation set out in the introduction, adopt the principle that the maximum fine to be imposed shall be determined as if the person convicted had been convicted of a separate offence in respect of each salmon taken.
In addition to the above, either:
1. Increase the maximum fine to a fine not exceeding the statutory maximum (currently £10,000),
OR
2. Increase the maximum fine to £40,000 commensurate with other approaches to wildlife crime.
for S.38(7)(b) no change suggested.
Section 54: Powers of constables and water bailiffs to enter land (Article 58 of the 2006 Order)
Description: Power to permit a constable or water bailiff to enter and remain upon any land in the vicinity of any river or of the sea-coast during any hour of the day or night for the purpose—
(a)of preventing a breach of the provisions of this Act; or
(b)of detecting persons guilty of any breach of those provisions.
Current Penalty: n/a
Justification: Water bailiffs and constables have powers to enter and remain on land for the purposes of preventing or detecting breaches of the 2003 Act. We believe that a power to enter land should be extended to persons who have legal consents to undertake essential management and monitoring work on watercourses. Examples of such scenarios could be scientific surveys such as electrofishing or management of invasive non-native species such as pink salmon. Such a power would not preclude prior engagement with landowners to agree access arrangements, but rather be a legal backstop where access is not agreed or granted. See also the scenario described under removal of obstructions below.
Other issues: Purchase of Rod Caught Salmon
Description: The Conservation of Salmon (Prohibition of Sale) (Scotland) Regulations 2002 made it illegal to sell any Atlantic salmon that has been taken by rod and line. This prohibition has been in place since October 2002.
Current Penalty: Any person who acts in contravention of these Regulations shall be guilty of an offence and liable to a fine not exceeding level 4 on the standard scale
Proposed approach: We believe that the regulations should be amended to make it illegal to purchase salmon where there is reasonable cause to suspect that the fish were taken by rod and line.
Justification: This change would further reduce the incentive for the illegal commercial activity of selling wild rod-caught fish for consumption.
Other issues: Sale and purchase of freshwater fish
Description: With the exception of trout under 20cm, or trout exposed for sale between any trout at any time between 1st September and 31st March inclusive, it is not an offence to sell rod caught freshwater fish.
Proposed approach: In the absence of any form of control relating to over-exploitation of freshwater fish, we believe that regulations should be introduced to prohibit the sale and purchase of all freshwater fish.
Justification: The lack of regulation in this area can increase pressure on those stocks where there is demand for consumption. The proposed regulations would ensure that there is no financial incentive for angling activity which may encourage unsustainable angling exploitation. It is currently only an offence to sell brown trout under 20cm – this provision is outdated and very selective and there is a need to consider the requirements of other fish species in light of different pressures on a range of species.
Other issues: Use of Gill Nets
Description: The Inshore Fishing (Monofilament Gill Nets) (Scotland) Order 1996 prohibited fishing for sea fish with a monofilament gill net. However, it does not prevent fishing with a multi-monofilament gill net.
Proposed approach: Prohibit the use of gill nets (for any purpose) in Scottish coastal waters. We understand that there may be an extant crab fishery in Orkney which utilised gill nets – we are comfortable for this fishery, or any other legitimate uses of such nets which can be demonstrated not to impact salmon or sea trout, to be excluded from the proposed prohibition.
Justification: Gill nets are an indiscriminate form of fishing, with considerable potential for bycatch, including cetaceans, sea birds and salmonids. In Scotland, multi-monofilament gill nets can legally be set in close proximity to salmon rivers and, as long as the individual is not ‘fishing for’ salmon or trout, no offence is committed.
Other issues: Removal of obstructions
Description: Section 31 of The Scotland Act 1998 (River Tweed) Order 2006 includes provision for the removal of natural obstructions where they prevent or obstruct the free passage of salmon.
We believe that a similar power would be useful in the event that (for example) a beaver dam is obstructing fish passage, but the landowner is not willing to grant access for management/mitigation of the barrier.
Current Penalty: The current wording in The Scotland Act 1998 (River Tweed) Order 2006 is as follows:
31.—(1) If a natural obstruction is preventing or obstructing the free passage of salmon or
freshwater fish, the owner or occupier of the land or fishery in or upon which the obstruction is
shall, within 14 days of being requested to do so in writing by the clerk or any two Commissioners
authorised in that behalf by the Commission, remove or alter the obstruction so as to allow the free
passage of fish at all times.
(2) If the owner or occupier of the land or fishery referred to in paragraph (1) fails to remove or
alter the obstruction, the Commission may order that such obstruction be removed or altered under
the direction of a person to be appointed by the Commission and at the expense of the Commission.
(3) The removal or alteration of an obstruction under paragraph (2) shall be carried out so as to
cause the least possible injury to the property in question.
Proposed approach: Include an amended version of this power in the 2003 Act, perhaps with a specific focus on beaver dams.
Justification: Any structure that delays or prevents free passage of fish has the potential to significantly impact wild salmon populations, particularly where they need to negotiate a series of such structures to reach their spawning grounds. As recognised in the Beaver Salmon Working Group, this is particularly important for spring salmon which tend to spawn at the top of catchments. We know that some landowners are very happy to have beavers on their land and may be less cognisant of the potential impact upstream. This power may be important in the event that a landowner refuses access for the management of a beaver dam.