Defra Proposes New System of Penalties for Fisheries Offences

It is widely accepted that for an allegation of criminal culpability to be converted into a finding of guilt, which leads to a criminal conviction, there must be a process which tests and examines the allegations made by the accuser.

Defra has begun a consultation process relating to proposals that those accused of fishery offences might be given the opportunity to accept an ‘on the spot fine’ as an alternative to being prosecuted in conventional criminal court proceedings.

This initial consultation process, which began in February 2006, will conclude on 5 May 2006. Defra will then review the responses received and before the end of the summer publish a draft form of law designed to reflect the responses received. There will then follow a further consultation process, which is not likely to exceed 4 weeks. This further consultation period will allow representations to be made on the draft form of law. It is unlikely that any new law will be in force this year.

Financial Administrative Penalties

Defra wish their enforcement officers to have the discretion to offer those accused of fisheries offences with the option of entering into a Financial Administrative Penalty (FAP) in relation to certain offences. The enforcement officer will have a set of criteria to apply against the individual facts of the accusation, such as whether the offence alleged is serious or minor, previous offending history, value of catch and volume of catch. If the decision is made to offer the FAP the accused will then have 28 days to pay the fine, which may range from £200 to £2000. The accused is not obliged to accept the FAP. If he prefers he may opt for a trial in the conventional criminal courts.

Currently, enforcement officers may either prosecute an alleged offence or send out a warning letter. The FAP will become a third option open to enforcement officers. Some benefits of FAP, as perceived by Defra, are:

• Enforcement processes will be quicker;
• No criminal prosecution will be required;
• It is a cheaper method of enforcing the law both for Defra and the accused;
• It will provide certainty in terms of level of fines, as there would be clearly published fixed penalties.

It is true that the legal costs of defending any prosecution are expensive. Indeed it is not unlikely that in many instances the costs of defending a prosecution may equal or exceed the fixed fines proposed. Fishermen may consider that entering into a FAP is cheaper than attempting to defend a prosecution, even if they do not believe that they are guilty of the offence they are accused of. It is proposed that payment of a FAP will not amount to a criminal conviction. However, there has been no clear assurance by Defra that a previous history of FAP payments by a particular person could not be used as evidence against that person in the future in relation to a prosecution for a more serious allegation, or where the enforcement officer does not elect to offer a FAB.

There remains with enforcement officers the discretion of when to offer a FAB. There may be discrepancies amongst regional enforcement officers of how to apply this discretion. It is possible that an enforcement officer’s annual legal budget may have an influence upon whether or not a FAP is offered.

Many fisheries offences are ‘strict liability’, that is there is no requirement for the prosecution to prove that the accused had the requisite guilty mind or even intended to commit the offence. In order to obtain a conviction all that must be proved is that the accused committed the offence. To balance this defendants charged with such offences have the opportunity to make a ‘plea in mitigation’, that is explain to the court the background circumstances that led to a particular offence being committed. The court may then apply its discretion to the penalty to be imposed. In entering into a FAP there is no opportunity to make a plea in mitigation.

For example, a skipper may spill his tea over his logbook whilst at sea and perhaps on re-entering the figures make an innocent error. This unintentional innocent error would amount to a criminal offence relating to the keeping of an accurate logbook. Further, that error could relate to a large volume of a particular fish species of some value sufficient to justify a FAP at the top end of the scale. That skipper may then be faced with the unenviable choice of electing to accept a FAP at the top end of the scale, even though there had been every intention of keeping accurate records, or paying for legal representation in the courts in order to make a ‘plea in mitigation’ and receive a much smaller fine.

The option of giving a FAP may lead to many more fines being levied upon the industry because so much less work is needed by enforcement officers in order to give a FAP in comparison with bringing a criminal prosecution. There may be a windfall of fines perhaps similar in nature to speeding tickets. It will be necessary, as for speeding tickets, to ask what the proceeds of these fines will be used for. Will that money be used for the benefit of the vast majority of the industry that complies with fisheries legislation?

There still remains time to make representations to Defra in connection with this proposal. If you are interested in making your view know but do not have the time to write directly to Defra you may visit any fishery office and pass on your views direct to the officer who will make a note. You will confirm the contents of the note and that note will be passed onto Defra. Defra’s website contains further details of the proposals on www.defra.gov.uk/corporate/consul/current.htm . Alternatively paper copies may be requested direct from Enforcement Policy Branch on 020 7270 8617.