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Statutory Instrument 2005 No. 17The Incidental Catches of Cetaceans in Fisheries (England) Order 2005(The document as of February, 2008. Arhiv.Online Library) STATUTORY INSTRUMENTS2005 No. 17SEA FISHERIES, ENGLANDThe Incidental Catches of Cetaceans in Fisheries (England) Order 2005
The Secretary of State for Environment, Food and Rural Affairs and the Secretary of State concerned with sea fishing in Northern Ireland, in exercise of the powers conferred by section 30(2) of the Fisheries Act 1981[1] and now vested in them[2] make the following Order: Citation and commencement 1. - (1) This Order may be cited as the Incidental Catches of Cetaceans in Fisheries (England) Order 2005 and shall come into force on 2nd February 2005. (2) Subject to paragraph (3) below, this Order shall not form part of the law of Scotland or Northern Ireland or apply in Wales. (3) Nothing in paragraph (2) above shall be treated as prejudicing the effect of section 30(2A) of the Fisheries Act 1981[3] in relation to, or for purposes incidental to, any provision in this Order which creates an offence. Interpretation 2. - (1) In this Order -
(2) In this Order the term "within relevant British fishery limits"[8] does not include -
(b) the Northern Ireland zone; (c) the territorial sea adjacent to Wales; (d) the territorial sea adjacent to the Isle of Man; (e) the territorial sea adjacent to Jersey; and (f) seas within British fishery limits adjacent to Guernsey, as defined by section 8 of the Fishery Limits At 1976[9] as extended to Guernsey. (3) Expressions in this Order which are not defined in the Order and which appear in the Council Regulation have the same meaning in this Order as they have for the purposes of the Council Regulation.
(b) any other fishing boat which is within relevant British fishery limits, a contravention of, or failure to comply with any specified Community provision, the master, the owner and the charterer (if any) shall be guilty of an offence.
(b) on conviction on indictment, to a fine. (2) A person found guilty of an offence under article 4 shall also be liable -
(b) to the forfeiture of any fish in respect of which the offence was committed, or, on summary conviction only, to a fine not exceeding the value of any fish in respect of which the offence was committed. Recovery of fines
(b) order that boat and its gear and catch to be detained for a period not exceeding three months from the date of the 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) Sections 77(1) and 78 of the Magistrates' Courts Act 1980[10] (postponement of issue of, and defects in, warrants of distress) shall apply to a warrant of distress issued under this article in England as they apply to a warrant of distress issued under Part III of that Act.
(b) any other fishing boat which is within relevant British fishery limits. (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.
(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 that person's custody or possession; (c) for the purpose of ascertaining whether an offence under article 4 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 article 4 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.
(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.
(b) take with him such other persons as appear to him to be necessary and any equipment or materials; (c) examine any fish on the premises and require persons on the premises to do anything which appears to him to be necessary for facilitating the examination; (d) carry out at such premises such other inspections or tests as may reasonably be necessary; (e) require any person not to remove or cause to be removed any fish from such premises for such a period as may be reasonably necessary for the purposes of establishing whether a relevant offence has at any time been committed; (f) require any person on the premises to produce any documents which are in that person's custody or possession relating to the catching, landing, transportation, trans-shipment, sale or disposal of any sea fish; (g) for the purpose of ascertaining whether any person on the premises has committed an offence under article 4, search the premises for any such document and require any person on the premises to do anything which appears to him to be necessary for facilitating the search including rendering all documents on computer systems into a visible and legible form; (h) inspect and take copies of any such document produced to him or found on the premises 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 (i) if he has a reason to suspect that an offence under article 4 has been committed, seize and detain any such document produced to him or found on the premises for the purpose of enabling the document to be used as evidence in proceedings for the offence. (2) The provisions of paragraph (1) above shall also apply in relation to any land used in connection with any of the activities described in paragraph (1) above, and in respect of any vehicle which a British sea-fishery officer has reasonable cause to believe is being used to transport fish or fisheries products, as they apply in relation to premises and, in the case of a vehicle, shall include power to require the vehicle to stop at any time and, if necessary, direct the vehicle to some other place to facilitate the inspection.
(b) either -
(ii) that an application for admission or the giving of such notice would defeat the object of the entry, or that the premises are unoccupied, or that the occupier is temporarily absent and it might defeat the object of the entry to await his return, the justice may by warrant signed by him, and valid for one month, authorise a British sea-fishery officer to enter the premises, if need be by reasonable force, and take with him such persons as appear to him to be necessary. Powers of British sea-fishery officers to seize fish, acoustic devices and fishing gear
(b) to any relevant British fishing boat wherever it may be; and (c) to any other fishing boat which is within relevant British fishery limits. (2) Where this article applies, any British sea-fishery officer may seize -
(b) any net or other fishing gear which he has reasonable grounds to suspect has been used in the course of the commission of such an offence; and (c) any acoustic device which he has reasonable grounds to suspect is not in compliance with the specifications prescribed by the Council Regulation and has been used in the course of the commission of an offence. Protection of officers
(b) without reasonable excuse prevents, or attempts to prevent, any other person from complying with any such requirement; or (c) assaults an officer, or a person assisting an officer, who is exercising any of the powers conferred on him by article 7,8 or 9 or intentionally obstructs any such officer in the exercise of any of those powers, shall be guilty of an offence.
(b) on conviction on indictment to a fine. Powers of other officers
(b) any fishery officer of a local fisheries committee acting within any part of the district of the committee which lies in England, may in England, exercise the powers as provided in articles 7, 8 and 9.
(b) declaration; (c) effort report; (d) document; or (e) document containing required information received by fisheries monitoring centres. (3) For the purpose of paragraph (2)(e) above, "required information" means -
(b) the most recent geographical position of the fishing boat expressed in degrees and minutes of longitude and latitude; and (c) the date and time of the fixing of that position, as communicated via a satellite-based vessel monitoring system established under Article 3.1 of Council Regulation (EC) No 2847/93. SPECIFIED COMMUNITY PROVISIONS AND MAXIMUM FINES ON SUMMARY CONVICTION
(This note is not part of the Order) This Order makes provision for the enforcement of Community restrictions and other obligations relating to sea fishing by vessels in certain areas as set out in Council Regulation (EC) No. 812/2004 (OJ No. L150, 30.04.04, p. 12, as amended by Corrigendum OJ No L185 24.05.04, p. 4). The Council regulation requires Member States to monitor the bycatch of cetaceans by the implementation of an observer scheme. It also requires certain vessels to deploy acoustic devices in relation to specified gear whilst fishing. This Order comes into force on 2nd February 2005. It does not form part of the law of Scotland or Northern Ireland and does not apply in Wales. Article 4 of the Order creates offences in respect of breaches of the specified provisions of the Council Regulation. Penalties are specified for such offences (article 5). Provision is made for the recovery of fines (article 6). The Order confers powers of enforcement on British sea-fishery officers in relation to certain fishing boats, as well as on land in England, and in relation to the seizure of fish, acoustic devices and fishing gear (articles 7, 8, 9, and 10). Provision is made for the punishment of anyone found guilty of assaulting or obstructing an officer (article 11). The Order provides for the exercise of the powers contained in it by officers authorised by the Minister and officers of local fisheries committees (article 12). Proceedings under the Order may be brought by a local fisheries committee in respect of offences committed within any part of its district (article 13). Article 14 makes provision in relation to offences committed by bodies corporate, partnerships and officers of unincorporated associations. Article 15 allows for the admissibility in evidence of records compiled for the purposes of Council Regulation (EC) No 2847/93. Notes: [1]1981 c.29. See section 30(3) for the definitions of "enforceable Community restriction", "enforceable Community obligation" and "the Ministers".back [2]Article 3(1) of and Schedule 1 to the Scotland Act 1998 (Concurrent Functions) Order 1999 (S.I. 1999/1592) provide for the functions exercisable under section 30(2) of the 1981 Act to be exercised by the Ministers, concurrently with Scottish Ministers, in relation to: British fishing boats (other than Scottish ones) within the Scottish zone; and Scottish fishing boats within British fishery limits but outside the Scottish zone. By virtue of article 2(a) of, and Schedule 1 to, the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/672) the functions exercisable under section 30(2) of the 1981 Act were transferred to the National Assembly in so far as exercisable in relation to Wales (defined in section 155(1) of the Government of Wales Act 1998 (c.38) as including "the sea adjacent to Wales out as far as the seaward boundary of the territorial sea"); in respect of waters beyond Wales these functions remain exercisable by the Ministers. The Government of Wales Act 1998, Schedule 3, paragraph 5 provides that any power of a Minister of the Crown transferred to the Assembly by virtue of S.I. 1999/672 should continue to be exercisable by the Minster who, but for that transfer, would have continued to hold that power for the purpose of implementing any Community obligation. By virtue of article 2(1) of the Transfer of Functions (Agriculture and Fisheries) Order 2000 (S.I. 2000/1812) any remaining functions of the Secretaries of State for Scotland and Wales under section 30(2) of the 1981 Act were transferred to the Minister of Agriculture, Fisheries and Food. By virtue of article 2(1) of the Transfer of Functions (Agriculture and Fisheries) Order 2000 (S.I. 2000/1812), any remaining functions of the Secretaries of State for Scotland and Wales under section 30 (2) of the 1981 Act were transferred to the Minister of Agriculture, Fisheries and Food. The functions of the Minister of Agriculture, Fisheries and Food and one or more named Secretaries of State (however described) acting jointly were transferred to the Secretary of State for Environment, Food and Rural Affairs and the one or more Secretaries of State acting jointly by virtue of article 2(5) of the Ministry of Agriculture, Fisheries and Food (Dissolution) Order 2002 (S.I.2002/794).back [3]Section 30(2A) was inserted by article 4 of and paragraph 68(5)(a) of Part I of Schedule 2 to the Scotland Act 1998 (Consequential Modifications) (No.2) Order 1999 (S.I. 1999/1820)back [4]OJ No. L150 30.04.04, p. 12, as amended by Corrigendum OJ No L185 24.05.04, p. 4back [5]1998 c.47back [6]1998 c.46; see section 126 and the Scottish Adjacent Waters Boundaries Order 1999 (S.I. 1999/1126).back [7]1998 c.38back [8]As defined by section 1 of the Fishery Limits Act 1976 (c.86).back [9]1976 c.86:see also article 2 and paragraph 3(c) of the Schedule to the Fisheries Limits Act (Guernsey) Order 1989 (S.I. 1989/2407).back [10]1980 c.43; section 78 was amended by sections 37 and 46 of the Criminal Justice Act 1982 (c.48).back [11]S.I. 1981/1675 (NI 26).back [12]1995 c.46.back ISBN0 11 051557 9 -- Back--
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