The Sea Fishing (Restriction on Days at Sea) Order (Northern Ireland) 2005

Made: 26th July 2005

Coming into operation: 28th July 2005

The Department of Agriculture and Rural Development, in exercise of the powers conferred by section 30(2) of the Fisheries Act 1981[^f00001], and now vested in it[^f00002], and every other power enabling it in that behalf hereby makes the following Order:

PART 1 — PRELIMINARY

Citation, commencement, extent and application

1

• (1) This Order may be cited as the Sea Fishing (Restriction on Days at Sea) Order (Northern Ireland) 2005 and shall come into operation on 28th July 2005.

• (2) This Order does not apply to any fishing boat which is less than 10 metres in length as set out in point 1 of Annex IVa and point 1 of Annex IVc.

Interpretation

2

• (1) In this Order –

• “Annex IVa” means Annex IVa to Council Regulation (EC) No. 27/2005 fixing for 2005 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where catch limitations are required[^f00003];

• “Annex IVc” means Annex IVc to Council Regulation (EC) No. 27/2005 fixing for 2005 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where catch limitations are required;

• “the Annex IV year” means the period commencing with the coming into operation of this Order and ending with 31st December 2005, and references to things done during the Annex IV year cover things done at any time within it;

• “base unit” has the same meaning as in Article 3 in relation to cod and Article 13 in relation to sole;

• “British fishing boat” means a fishing boat which is registered in the United Kingdom under Part II of the Merchant Shipping Act 1995[^f00004] or is owned wholly by persons qualified to own British ships for the purposes of that Part of that Act;

• “cod recovery zone” means the geographical area defined in point 2 of Annex IVa;

• “day” has the meaning set out in point 3(b) of Annex IVa and point 3(b) of Annex IVc;

• “equivalent provision” means any provision, in any other Order made for the purposes of implementing Annex IVa or IVc or Regulation 423/04 in relation to any part of the United Kingdom, which has equivalent effect to a provision in this Order, proceedings in respect of which may be taken in Northern Ireland by virtue of section 30(2A) of the Fisheries Act 1981;

• “fishing boat” includes any vessel covered by Annex IVa or Annex IVc;

• “foreign fishing boat” means a fishing boat covered by Annex IVa or Annex IVc which is not a British fishing boat;

• “management period” means a period established as provided in Article 3 or 13, as the case may be;

• “Northern Ireland fishing boat” means a fishing boat which is registered in the register maintained under section 8 of the Merchant Shipping Act 1995 and whose entry in the register specifies a port in Northern Ireland as the port to which the boat is to be treated as belonging;

• “Northern Ireland zone” has the same meaning as in the Northern Ireland Act 1998[^f00005];

• “person in charge”, in relation to a fishing boat, means the owner, master or charterer, if any, of the fishing boat or the agent of any of them;

• “regulated gear” means any gear within a grouping of fishing gears set out in point 4 of Annex IVa in relation to cod and point 4 of Annex IVc in relation to sole;

• “Regulation 2807/83” means Commission Regulation (EEC) No. 2807/83 laying down detailed rules for recording information on Member States' catches of fish, as amended at the date this Order is made[^f00006];

• “Regulation 2847/93” means Council Regulation (EEC) No. 2847/93 establishing a control system applicable to the Common Fisheries Policy, as amended at the date this Order is made[^f00007];

• “Regulation 423/04” means Council Regulation (EC) No. 423/2004 establishing measures for the recovery of cod stocks[^f00008];

• “sole recovery zone” means the geographical area defined in point 2 to Annex IVc.

• “unused days” in relation to any fishing boat, grouping of regulated gear and management period, means in relation to cod, the number of days available to the boat carrying the gear in the cod recovery zone during the period before its allocation of days under Article 4 is exhausted and, in relation to sole, the number of days available to the boat carrying the gear in the sole recovery zone during the period before its allocation of days under Article 14 is exhausted;

• “The Department” means Department of Agriculture and Rural Development.

• (2) In this Order –

• “logbook” means the same as in Article 6 of Regulation 2847/93 as amplified by Regulation 2807/83, and, for the purposes of any provision other than Article 12 and 22, any reference to a document or logbook includes any –map, plan, graph or drawing;photograph;data, howsoever reproduced, communicated via a satellite-based vessel monitoring system established under Article 3.1 of Regulation 2847/93;disk, tape, sound track or other device in which sounds or other data (not being visual images) are recorded so as to be capable (with or without the aid of some other equipment) of being reproduced; andfilm (including microfilm), negative, tape, disk or other device in which one or more visual images are recorded so as to be capable of being reproduced.

• (3) Any information provided to any authority for the purposes of any provision of this Order shall be treated as also provided for the purposes of any equivalent provision.

• (4) Expressions in this Order which are not defined in paragraph (1) and which appear in Annex IVa or Annex IVc of Council Regulation (EC) No. 27/2005 or Regulation 423/04 have the same meaning in this Order as they respectively do in those Regulations.

• (5) The Interpretation Act (Northern Ireland) 1954[^f00009], except section 20(2) and (3), shall apply to this Order as it applies to an Act of the Northern Ireland Assembly.

PART 2 — COD

Establishment of management periods

3

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Absences from port

4

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Carriage and operation of fishing gears

5

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Transfer of days from one boat to another

6

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Transport of cod

7

Where any quantities of cod are transported in contravention of Article 15(2) of Regulation 423/04, the owner or hirer of, and the person responsible for, the vehicle used to transport the cod is guilty of an offence.

Mixing of species

8

A person in charge of –

• (a) a Northern Ireland fishing boat, or

• (b) a British (other than Northern Ireland) or foreign fishing boat within the Northern Ireland zone,

on which cod is stowed or retained in contravention of Article 14 of Regulation 423/04, is guilty of an offence.

Prior notification of landing, discharge or transhipment

9

• (1) The person in charge of a British or foreign fishing boat to which Article 11 of Regulation 423/04 applies, which enters a port in Northern Ireland without providing the information called for by that Article, is guilty of an offence.

• (2) A British sea-fishery officer may, by written or oral direction to the person in charge of a British or foreign fishing boat landing at a port in Northern Ireland, require that the discharge referred to in Article 11(2) of Regulation 423/04 does not commence until authorised by a British sea-fishery officer.

• (3) The person in charge of a fishing boat from which a discharge is made in contravention of any requirement under paragraph (2) is guilty of an offence.

• (4) The person in charge of a British or foreign fishing boat to which Article 11(3) of Regulation 423/04 applies, who fails to provide information as required by that Article, is guilty of an offence.

• (5) For the purposes of paragraph (1) and (4), the Department of Agriculture and Rural Development is the person to whom that information is to be provided.

Landing of cod at a designated port

10

• (1) The person in charge of a British or foreign fishing boat which lands cod in Northern Ireland in contravention of Article 12 of Regulation 423/04 is guilty of an offence.

• (2) If, in the circumstances to which Article 15 of Regulation 423/04 applies, cod is first landed from a fishing boat in a port within Northern Ireland designated as specified in paragraph (3), the person in charge of that boat shall ensure that a representative sample, obtained in accordance with that Article, shall be weighed in the presence of a British sea-fishery officer prior to the cod being offered for first sale, unless the conditions in paragraph 3 are met.

• (3) The conditions referred to in paragraph 2 are –

• (a) the fishing boat is party to an arrangement made among fishing boats using the port with a person or organisation to act as their controller for the purposes of that point; and

• (b) details of the arrangement, and the fishing boats which are party to it, have been notified to the Department of Agriculture and Rural Development.

• (4) For landings in Northern Ireland, the ports, specified in column 1 of the Table in the Schedule and in relation to each such port the landing location specified opposite thereto are designated for the purposes of Article 12 of Regulation 423/04.

• (5) The person in charge of a fishing boat from which cod is offered for first sale in contravention of paragraph 2 is guilty of an offence.

Recording information on catches of fish

11

The person in charge of a Northern Ireland fishing boat, or foreign fishing boat in respect of which the 8% margin of tolerance referred to in Article 13 of Regulation 423/04 is exceeded, is guilty of an offence.

Maintenance of logbooks

12

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PART 3 — SOLE

Establishment of management periods

13

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Absences from port

14

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Carriage and operation of fishing gears

15

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Transfer of days from one boat to another

16

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Transport of sole

17

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Mixing of species

18

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Transhipment or landing relating to third countries

19

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Weighing of sole

20

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Recording information on catches of fish

21

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Maintenance of logbooks

22

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PART 4 — ENFORCEMENT

Penalties and defence

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• (1) A person guilty of an offence under Part 2 or Part 3 of this Order or under any equivalent provision shall be liable –

• (a) on summary conviction to a fine not exceeding £50,000; and

• (b) on conviction on indictment to a fine.

• (2) The court by or before which a person is convicted of an offence under any of Articles 7 to 11 of this Order of this Order or under any equivalent provision may, subject to paragraph (4), also order forfeiture of:

• (a) any fish in respect of which the offence was committed; and

• (b) except in the case of an offence under Article 7 or 17 or any equivalent provision, any fishing gear used in the course of, or in activities leading to, the commission of the offence.

• (3) Any person found guilty of an offence under any of Articles 7 to 11 of this Order of this Order or under any equivalent provision shall, subject to paragraph (4), also be liable on summary conviction to a fine not exceeding the value of the fish in respect of which the offence was committed.

• (4) A person shall not be liable to a fine under paragraph (3) in respect of such an offence if, under paragraph (2), the court orders the forfeiture of the fish in respect of which that offence was committed; and where a fine is imposed under paragraph (3) in respect of any offence, the court shall not have the power under paragraph (2) to order forfeiture of the fish in respect of the offence was committed.

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) References in this Article to fish in respect of which an offence was committed include fish caught at any time in the period during which the offence was committed.

Recovery of fines

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• (1) Where a fine is imposed by a magistrates' court on a person in charge of a fishing boat who is convicted by the court of an offence under this Order or any equivalent provision, the court may –

• (a) issue a warrant of distress against the boat involved in the commission of the offence and its fishing gear and catch and any property of the person convicted for the purpose of levying the amount of the fine; and

• (b) order the boat and its gear and catch to be detained for a period not exceeding three months from the date of conviction or until the fine is paid or the amount of the fine is levied in pursuance of any such warrant, whichever occurs first.

• (2) Articles 114(2) and 154 of the Magistrates Courts (Northern Ireland) Order 1981[^f00011] (postponement of certain warrants and objections as to want of form or variance between complaint etc and evidence adduced) shall apply to a warrant of distress issued under this Article as they apply to a warrant referred to in those Articles of that Order.

• (3) Where, in relation to an offence under this Order or under any equivalent provision a court orders under section 90 of the Magistrates Court Act 1980[^f00012] or section 222 of the Criminal Procedures (Scotland) Act 1995[^f00013] that a fine shall be enforceable in Northern Ireland, paragraphs (1) and (2) shall apply as if the fine were imposed by a court in Northern Ireland.

Powers of British sea-fishery officers in relation to fishing boats

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• (1) For the purpose of enforcing Part 2... or any equivalent provisions, or to operate or facilitate the operation of any monitoring deriving from Article 16 of Regulation 423/04 or point 21 of Annex IVc, any British sea-fishery officer may exercise the powers conferred by this Article in relation to –

• (a) any Northern Ireland fishing boat wherever it may be; or

• (b) any other fishing boat which is within the Northern Ireland zone.

• (2) He may go on board the boat, with or without persons assigned to assist him in his duties, and may require the boat to stop and do anything else which will facilitate either the boarding of, or the disembarkation from, the boat.

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

• (a) may search for fish or fishing gear on the boat and may examine any fish on the boat and the equipment of the boat, including the fishing gear, and require persons on board the boat to do anything which appears to him to be necessary for facilitating the examination;

• (b) may require any person on board the boat to produce any document relating to the boat, to any fishing operations or other operations ancillary thereto or to the persons on board which is in his custody or possession;

• (c) for the purpose of ascertaining whether an offence under any of those Part 2 or Part 3 or any equivalent provision has been committed, may search the boat for any such document and may require any person on board the boat to do anything which appears to him to be necessary for facilitating the search;

• (d) may inspect and take copies of any such document produced to him or found on board and, where any such document is kept by means of a computer, require it to be produced in a form in which it may be taken away; and

• (e) where the boat is one in relation to which he has reason to suspect that an offence under any of those Articles or any equivalent provision has been committed, may seize and detain any such document produced to him or found on board for the purpose of enabling the document to be used as evidence in proceedings for the offence;

but nothing in sub-paragraph (e) above shall permit any document required by law to be carried on board the boat to be seized and detained except while the boat is detained in a port.

• (4) Where it appears to a British sea-fishery officer that an offence under A Article 8 or 11 of this Order , or under any equivalent provision, has at any time been committed in respect of a fishing boat, he may –

• (a) require the master of the boat to take, or himself take, the boat and crew to the port which appears to him to be the nearest convenient port; and

• (b) detain, or require the master to detain, the boat in port;

and where such an officer detains or requires the detention of the boat he shall serve on the master a notice in writing stating that the boat is (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.

Powers of British sea-fishery officers on land

26