The Sea Fishing (Enforcement of Community Satellite Monitoring Measures) (Northern Ireland) Order 2005

Made: 13th October 2005

Coming into operation: 14th November 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, makes the following Order:

PART 1 — GENERAL

Citation, commencement, extent and application

1

• (1) This Order may be cited as the Sea Fishing (Enforcement of Community Satellite Monitoring Measures) (Northern Ireland) Order 2005 and shall come into operation on 14th November 2005.

• (2) Subject to paragraph (3), this Order shall not form part of the law of Scotland or England or apply in Wales.

• (3) Nothing in paragraph (2) shall be treated as prejudicing the effect of section 30(2A) of the Fisheries Act[^f00003] in relation to, or for purposes incidental to, any provision in this Order which creates an offence.

Interpretation

2

• (1) The Interpretation Act (Northern Ireland) 1954[^f00004] shall apply to this order as it applies to an Act of the Northern Ireland assembly.

• (2) In this Order—

• “Northern Ireland fishing boat” means a fishing boat which is registered in the register maintained under section 8 of the Merchant Shipping Act 1995[^f00005] 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;

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

• “Community fishing boat” means a fishing boat flying the flag of, and registered in, a Member State of the European Community other than the United Kingdom;

• “equivalent provision” means any provision in any other Order made for the purposes of making provision for the administration and enforcement of the Commission Regulation, extending to any part of the United Kingdom, which has equivalent effect to a specified 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;

• “Fisheries Monitoring Centre” means a Fisheries Monitoring Centre established under Article 3(7) of Regulation 2847/93;

• “fishing boat” includes a receiving vessel within the meaning of Regulation 2847/93;

• “Northern Ireland zone” has the same meaning as in the Northern Ireland Act 1998[^f00006];

• “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;

• “Regulation 2847/93” means Council Regulation (EEC) No. 2847/93 establishing a control system applicable to the common fisheries policy[^f00007] as amended by Council Regulation (EC) No. 2870/95[^f00008], Council Decision (EC) No. 95/528[^f00009], Council Regulation (EC) No. 2489/96[^f00010], Council Regulation (EC) No. 686/97[^f00011], Council Regulation (EC) No. 2205/97[^f00012], Council Regulation (EC) No. 2635/97[^f00013], Council Regulation (EC) No. 2846/98[^f00014], Council Regulation (EC) No. 806/2003[^f00015] and Council Regulation (EC) No. 1954/2003[^f00016];

• “required information” means the information set out in Article 5(1) of the Commission Regulation;

• “satellite-tracking device” means a device which sends the required information by way of satellite and land earth station to a Fisheries Monitoring Centre;

• “Commission Regulation” means Commission Regulation (EC) No. 2244/2003 laying down detailed provisions regarding satellite-based Vessel Monitoring Systems[^f00017];

• “third country fishing boat” means a fishing vessel flying the flag of, and registered in, a state other than a Member State of the European Communities and includes a receiving vessel within the meaning of Commission Regulation 2847/93.

• (3) Any reference to a logbook, declaration or document or any required information includes, in addition to a logbook, declaration or document or required information in writing—

• (a) any map, plan, graph or drawing;

• (b) any photograph;

• (c) any disk, tape, sound track or other device in which sounds or other data (not being visual aids) are recorded so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and

• (d) any film (including microfilm), negative, tape, disk or other device in which one or more visual images are recorded so as to be capable (as aforesaid) of being reproduced therefrom.

Application

3

This Order only applies to fishing boats to which the Commission Regulation applies.

PART 2 — PROVISIONS RELATING TO NORTHERN IRELAND FISHING BOATS, AND BRITISH AND COMMUNITY FISHING BOATS WITHIN THE NORTHERN IRELAND ZONE

Application of Part 2

4

Articles 5 to 9 apply to—

• (a) a Northern Ireland fishing boat;

• (b) a British fishing boat within the Northern Ireland zone;

• (c) a Community fishing boat within the Northern Ireland zone.

Installation of a satellite-tracking device

5

• (1) A person in charge of a fishing boat which has a satellite-tracking device installed for the purposes of the Commission Regulation which is capable of being manually overridden is guilty of an offence.

• (2) A person in charge of a fishing boat which has a satellite-tracking device installed for the purposes of the Commission Regulation which permits the input or output of false positions is guilty of an offence.

• (3) A person in charge of a fishing boat which leaves port in contravention of Article 4 of the Commission Regulation is guilty of an offence.

Prohibition against switching off a satellite-tracking device whilst in port without prior notification

6

A person in charge of a fishing boat on which the satellite-tracking device is switched off other than in accordance with Article 8(3) of the Commission Regulation is guilty of an offence.

Transmission of required information

7

• (1) A person in charge of a fishing boat the satellite-tracking device on which fails to transmit data in compliance with Article 5(1) of the Commission Regulation on an hourly basis, is guilty of an offence except where—

• (a) the satellite-tracking device is transmitting data in compliance with Article 5(1) of the Commission Regulation on a two hourly basis and the Fisheries Monitoring Centre of the flag state can, in accordance with Article 8(2) of the Commission Regulation, poll the actual position of the fishing boat, or

• (b) the satellite-tracking device has been switched off in compliance with Article 8(3) of the Commission Regulation, or

• (c) data is being communicated in compliance with Article 11(1) of the Commission Regulation.

Responsibilities relating to the satellite-tracking device

8

• (1) Subject to compliance with Article 8(3) of the Commission Regulation, a person in charge of a fishing boat in respect of which there is a failure to comply with Article 6(1) of the Commission Regulation is guilty of an offence.

• (2) Subject to paragraph (3) a person in charge of a fishing boat in respect of which there is failure to comply with Articles 6(2)(a), (b), (c) or (d) of the Commission Regulation, as read with Article 11(4) of that Regulation, is guilty of an offence.

• (3) A person in charge of a fishing boat in respect of which there is a failure to comply with Article 6(2)(d) of the Commission Regulation, where the derogation in Article 12(1) of that Regulation applies shall not be guilty of an offence.

• (4) A person in charge of a fishing boat in respect of which there is a contravention of Article 6(3) of the Commission Regulation is guilty of an offence.

Technical failure or non-functioning of the satellite-tracking device

9

• (1) A person in charge of a fishing boat in respect of which, in the event of a technical failure or non-functioning of the satellite-tracking device, there is a failure to communicate information in compliance with Article 11(1) of the Commission Regulation is guilty of an offence.

• (2) A person in charge of a fishing boat which leaves port in contravention of Article 11(2) of the Commission Regulation is guilty of an offence.

• (3) The competent authority under Article 11(2) of the Commission Regulation is a British sea-fishery officer.

PART 3 — PROVISIONS RELATING TO THIRD COUNTRY FISHING BOATS WITHIN THE NORTHERN IRELAND ZONE

Application of Part 3

10

Articles 11 to 14 apply to third country fishing boats within the Northern Ireland zone.

Installation of a satellite-tracking device

11

• (1) A person in charge of a fishing boat which has a satellite-tracking device installed for the purposes of the Commission Regulation which is capable of being manually overridden is guilty of an offence.

• (2) A person in charge of a fishing boat which has a satellite-tracking device installed for the purposes of the Commission Regulation which permits the input or output of false positions is guilty of an offence.

• (3) A person in charge of a fishing boat which fails to comply with Article 17 of the Commission Regulation is guilty of an offence.

Transmission of required information

12

A person in charge of a fishing boat the satellite-tracking device on which fails to transmit data to the Fisheries Monitoring Centre of the flag state in compliance with Articles 18 and 20 of the Commission Regulation is guilty of an offence.

Responsibilities relating to the satellite-tracking device

13

• (1) A person in charge of a fishing boat in respect of which there is a failure to comply with Article 19(1) of the Commission Regulation is guilty of an offence.

• (2) A person in charge of a fishing boat in respect of which there is a failure to comply with Article 19(2) of the Commission Regulation is guilty of an offence.

• (3) A person in charge of a fishing boat in respect of which there is a contravention of Article 19(3) of the Commission Regulation is guilty of an offence.

Technical failure or non-functioning of the satellite-tracking device

14

• (1) A person in charge of a fishing boat in respect of which, in the event of a technical failure or non-functioning of the satellite-tracking device, there is a failure to communicate information in compliance with Articles 23(1) and 23(2) of the Commission Regulation is guilty of an offence.

• (2) A person in charge of a fishing boat which leaves port in contravention of Article 23(3) of the Commission Regulation is guilty of an offence.

• (3) The competent authority under Article 23(3) of the Commission Regulation being a British sea-fishery officer.

PART 4 — PENALTIES AND RECOVERY OF FINES

Penalties

15

A person found guilty of an offence under Articles 5, 6, 7, 8, 9, 11, 12, 13 or 14 of this Order or under any equivalent provision is liable—

• (a) on summary conviction to a fine not exceeding the statutory maximum, and

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

Recovery of fines

16

• (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 such 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[^f00018] (postponement of issue of certain warrants and objections as to want of form or variance or variance between complaint etc. and evidence adduced) shall apply to a warrant of distress issued under this Article in Northern Ireland as it applies to a warrant referred to in those Articles of that order.

• (3) Where, in relation to a fine in respect of an offence under this Order or any equivalent provision a court orders under section 90 of the Magistrates Court Act 1980[^f00019] or section 222 of the Criminal Procedure (Scotland) Act 1995[^f00020], 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. .

PART 5 — POWERS AND PROTECTION OF BRITISH SEA FISHERY OFFICERS

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

17

• (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—

• (a) a Northern Ireland fishing boat, or

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

• (c) a Community fishing boat within the Northern Ireland zone, or

• (d) a third country fishing boat within the Northern Ireland zone.

• (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—

• (a) may search for, examine and may test any equipment of the boat, including the satellite-tracking device, and require persons on board the boat to do anything which appears to the officer to be necessary for facilitating the examination and test;

• (b) may require any person on board the boat to produce any document relating to the boat, or the equipment of the boat, to any fishing operations or other operations ancillary thereto or to the persons on board which is in the custody or possession of that person and may take copies of any such document;

• (c) for the purpose of ascertaining whether an offence under this Order or under 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 the officer to be necessary for facilitating the search;

• (d) inspect, take copies of and retain in the possession of the officer while the officer completes any search, examination and inspection provided for under this Article, any such document produced to the officer or found on board;

• (e) may require the master or any person for the time being in charge of the boat to render all such documents on a computer system into a visible and legible form in which it may be taken away;

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

• (g) may remove, or authorise in writing any other person to remove, the satellite-tracking device, or any part thereof, and any other equipment on board which the officer considers necessary for the purpose of establishing—

• (i) whether the satellite-tracking device has been tampered with, or

• (ii) whether any other equipment on board is interfering with the transmission the information set out in Article 5(1) of the Commission Regulation

or for the purpose of examining, testing, repairing or replacing such equipment.

• (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—

• (a) require the master of the boat in relation to which the offence took place to take, or may himself take, the boat and its 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 the port,

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

18

A British sea-fishery officer or a person assisting such an officer by virtue of Article 17(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 17 of this Order if the court is satisfied—

• (a) that the act was done in good faith;

• (b) that there were reasonable grounds for doing it; and

• (c) that it was done with reasonable skill and care.

Obstruction of officers

19

• (1) Any person who—

• (a) fails without reasonable excuse to comply with any requirement imposed by a British sea-fishery officer under the powers conferred on such an officer by virtue of Article 17 of this Order;