Beating The System – Fines and the Fishing Industry
Inshore Fisheries Conservation Authority (IFCAs) prosecution fines are unlimited. The Fishing industry is seeing higher and higher fines from the Courts year on year. BREXIT may herald greater resources and funding for fisheries enforcement and prosecution, not just of foreign vessels, but our own too. This series of monthly articles is designed to provide you as an owner, co-owner or skipper of a fishing vessel a few helpful tips to prevent prosecution or provide a possible defence.
The IFCAs have the power to make their own law, produce permits and enact bylaws to manage their districts. The ultimate goal of regulation in any industry is to penalise to a point that lessons are learned. As in most other industries, it is likely that fishing regulators hope that the high cost of offending will motivate fishing operations to police their own activities. If so, the fishing industry is in the early phase of such a programme. Prosecutions and fines will increase before self-regulation is reached.
IFCAs decisions on disposal following investigation are tiered;
- Warning: (kept on record by the relevant IFCA-no penalty) for mistake, oversights or first offences where there is a reason not to prosecute.
- Financial Administrative Penalty (FAP): offered (fine paid directly to IFCA max of £10,000) for less serious offences where the gain is thought to be under £10,000.
- Court Proceedings: (fine and Prosecution costs. No maximum fine -related to turnover of the company).
For offences of fishing within a prohibited area or without a permit the fines for owners can regularly be as high as £20-30,000.00. The skippers themselves often face fines of £10-20,000.00
In a recent fisheries prosecution, the Judge made the point that; ‘with ownership comes responsibility’. For an owner, the liability for the offending of the Skipper is all but strict liability. All but, means that where an owner or skipper can demonstrate that they have done all that was reasonably practicable to avoid offending (and evidence it), they may be afforded a defence in court or avoid prosecution altogether.
To beat the system, owners can no longer sit back, but must take an active approach to reduce the risk of their vessel committing offences and document these activities (Due Diligence). This starts with who owners employ as a skipper.
In a situation where the skipper, unbeknown to the owner, has had a FAP or other warning by an IFCA but has not disclosed it, the owner may not have the benefit of obtaining a written warning or a FAP and is likely to be prosecuted for a first offence. This can make a very costly difference.
In one particular recent case the skipper was known locally (not by the unfortunate owner) to be less than squeaky clean and while a good skipper with good knowledge, he was boosting his catch by fishing in closed areas and also selling catch on the side for cash. By the time the owner was aware an IFCA investigation was already underway.
Because the skipper had been prosecuted before, the IFCA moved straight to court proceedings against both owner and skipper bypassing the warning or FAP. This left the owner paying a large fine that could have been avoided buy one simple step:
In normal circumstances IFCAs cannot share information recorded against a skipper. However, If the owner prior to appointing the skipper obtains a signed letter from the Skipper, stating ‘I authorise the IFCA to disclose any previous findings or matters recorded against me’. The IFCA can then notify the owner of any details. The owner can then make a sensible decision on hiring with all the risks and facts before them, the owner should document their action whatever the outcome to evidence the diligence exercised.
Due diligence for owners and skippers can cost little or nothing and may save tens of thousands in wasted fines and costs. This article and the ones that follow are designed to provide you, as an owner/co-owner or skipper of a Fishing vessel, with a few helpful tips to prevent prosecution or provide a possible defence.
About the Author
Tristan Harwood is a barrister in Bartons specialist marine department , is a qualified ‘new entrant fisherman’ and represents fishermen, owners and fish producers in MMO, IFCA, MCA or HSE interviews and investigations. Bartons are an award-winning marine law firm who also specialise in fishing related Personal Injury matters and sale and purchase of fishing vessels. To discuss any fishing related legal issues please call Tristan or the team on 01752 675740.
Publication
First published by Fishing News on 19 February 2020.
