ClientEarth researches enforcement of CFP Rules in England by MMO and IFCAs
The EU has a control system for ensuring compliance with the rules of the Common Fisheries Policy — this is Council Regulation (EC) No. 1224/2009. This is known in UK law as the “Control Regulation”, and is an essential management instrument to ensure that the CFP’s rules are being observed by fishermen and enforced by the regulators (Marine Management Organisation [MMO] beyond 12 nautical miles, and Inshore Fisheries and Conservation Authorities [IFCAs] inside 12 nautical miles).
ClientEarth has researched the way and extent this CFP Control Regulation is being applied in England, and has published its findings in a report titled The Control and Enforcement of Fisheries in England, November 2016, to view click here .
We publish an extract from this Report below:
“It is firstly important to address the question about whether England is currently maintaining a national register of fisheries infringements, as required by the Control Regulation [Article 93 of the CFP Control Regulations].
Such a register is not accessible via a standard internet search, and the MMO confirmed this to be the case in its response to our freedom of information act request stating that this register exists but is not publicly available.
We understand from conversations with IFCA staff that IFCAs do not always report the infringements they detect to the centralised system for inclusion in the national register. Therefore, it can be concluded that this register is not comprehensively maintained. This itself represents a breach of the Control Regulation.
The Southern IFCA’s Enforcement Strategy and Framework refers to a UK ‘Monitoring Control and Surveillance System’ (MCSS), which is stated as being a ‘system that collects fisheries effort data nationally to inform management and enforcement actions’. Accordingly, the Sussex IFCA and the Kent and Essex IFCA also mention this system in their annual reports.
According to the MMO’s response to our freedom of information request, this system is maintained and managed by the MMO, and it is used daily to record all enforcement activity. In addition, the MMO declared that the system is also used by the IFCAs for reporting purposes.
However, based on conversations held during the 2016 summer with Southern IFCA and Devon and Severn IFCA, we found that IFCAs’ access to MCSS is quite limited.
In fact, the system is not available to IFCAs to register prosecutions and IFCAs are not obliged to enter their data into it.
In this context and despite Southern IFCA’s Enforcement Strategy and Framework referring to the MCSS, this does not appear to be intended for the recording of their infringements, and therefore, as far as we understand, has not led to infringement information from IFCAs being collected or past on as required by the Control Regulation.
We addressed two ‘freedom of information act requests’, in different years, to the MMO asking for the data they hold on fisheries offences, covering descriptions of the type of offence in each case, and what penalty was enforced in respect of it.
The data we received also included enforcement cases where no further action was taken, or where an alternative course of action (such as verbal or written warnings) was taken instead of prosecution. Again, it is not clear whether the data was gathered from the national register of infringements required by the Control Regulation.
The data supplied to us by the MMO show that in 2012 a total of 40 prosecutions were brought in English waters.
Of these, 36 resulted in Magistrates Court proceedings, one case was heard in Lewes Crown Court, one case dropped and 2 FAPs were issued as an alternative to court proceedings (counted as ‘prosecutions’ in the MMO figures). [Marinet Note: Financial Administrative Penalty – these may be issued by the MMO up to a limit of £10,000 and serve as an alternative to prosecution, and provided payment is made within 28 days no criminal prosecution results: Sea Fishing (Penalty Notice) (England) Order 2011].
The data do not indicate that penalty points were issued in any of the cases, and because our request asked broadly about penalties (rather than specifically about fines for example), we presume this means that points were not applied.
All court proceedings resulted in a guilty verdict. The fines issued varied between a minimum of £300, based on the value of the catch obtained (with £2,550 costs); and the largest, for an amount of £5,000.
The Plymouth Magistrates Court issued both the smallest and the largest fine. The smaller fine was issued for exceeding herring quota restrictions while the largest fine was issued for a gear offence (otter twine thickness greater than 4mm).
The largest financial burden imposed in any of these cases (i.e. including both fine and court costs) was for an amount of £14,120 and Plymouth Magistrates Court again issued this. This prosecution included a fine based on the value of the catch, plus £10,000 in costs.
According to the MMO’s data, 14 of the guilty verdicts in 2012 resulted in no fines and no costs being awarded. It is unclear from the information received the reasons for this.
Removing the cases where no fines or costs were awarded so as not to skew the data, on average, of the guilty verdicts reached in 2012, the average court fine was for an amount of £1,249.30 and average court costs were for an amount of £1,488.80.
Including the cases where no fines or costs were awarded, the average fine on a guilty verdict was £776, with the costs averaging £925.
The largest FAP (Financial Administrative Penalty) issued in 2012 was for £5,000.
In 2013, the information shows that there were only 12 prosecutions. Of these, 10 guilty verdicts were awarded by the Magistrates Courts, one case was adjourned and one FAP was offered (again, counted amongst the prosecutions for the purposes of the MMO’s figures, and again, no indication that points were applied).
All the court proceedings took place in the Magistrates Courts and the largest fine issued was £4,000. This fine was issued by North Tyneside Magistrates Court and was for an offence relating to a failure to record catch correctly.
The minimum fine issued by the courts in 2013 was £500, from Torbay Magistrates Court, for an offence relating to ‘illegal fishing within mackerel box’. There were 3 guilty verdicts that do not appear from the information received to have resulted in any fines or court costs.
Once again removing the cases where no fines or costs were awarded despite a guilty verdict, the average fine issued for an illegal fishing activity in 2013 was £1,641 with £303 awarded in court costs. Including the cases with no fines or costs awarded, the average fine for 2013 was £1,313 with £242 awarded in court costs.
The FAP issued by the MMO in 2013 was again for the sum of £5,000 and concerned an offence relating to towed gear mesh size failure.
Between the years 2014 and 2016 the MMO has carried out 1541 compliance checks at sea and 3203 inspections of vessels in port. The results, in terms of enforcement actions taken by such authority are explained below:
- In 2014, the data indicates that there were 22 prosecutions. Of these, 21 guilty verdicts were awarded by the Magistrates Courts and 8 FAPs were issued.
- In 2015, there were 53 prosecutions with 9 guilty verdicts and 14 FAPs were issued. The largest fine issued that year by a Magistrates Court was of £1333.
- In 2016, the MMO has to date brought 8 prosecutions from which the Courts awarded 2 guilty verdicts imposing fines of £500 in each and 4 FAPs were issued.
IFCAs
Based on the information declared in annual reports, anecdotal evidence and discussions with IFCA enforcement officers, IFCAs’ primary concerns in relation to enforcement are compliance with the Hampton Principles.
Particular weight is given to the statement in the Hampton Principles that, ‘no inspection shall take place without a reason’. While the Regulator’s Compliance Code (which set out the Hampton Principles) has now been superseded by the shorter Regulator’s Code, the Hampton Principles still seem to remain a key component of IFCA’s enforcement strategy.
A key reason for this may be because the now in force Regulator’s Code still has as its core the requirement for a risk-based approach to enforcement.
This means that in many districts, IFCAs will only monitor and inspect fishing vessels on an ‘intelligent lead basis’, i.e. where information is brought to the IFCA indicating a particular issue of concern, which is used to trigger further investigation.
As a result, there are very few IFCA patrol boats operating in the inshore fisheries conservation districts, and aside from what IFCA officers are told by local fishers and stakeholders, there is very little knowledge about rates of compliance in each district.
In the past, it has been reported to us that IFCA officers were concerned about the application of the provisions of the Regulation of Investigatory Powers Act 2000 (RIPA).
RIPA requires that certain covert surveillance activities and the use of covert human intelligence sources can only be lawfully undertaken with specific, case-by-case authorisation.
Even though currently these concerns seem to be less prevalent since RIPA has been in force for a longer time, one area of confusion over when RIPA will apply still remains relevant, particularly when it is unclear whether people are living on the vessel.
The overall result is that IFCA officers perceive they must take a very cautious approach to their enforcement activities in order not to fall foul of this legislation. This may mean, again, that too little proactive investigative work is undertaken, for misplaced fear of breaching RIPA.
A further consequence over lack of clarity on RIPA’s application could however also be that evidence of infringing activity is collected, but without the correct authorisation under RIPA, with the result that the evidence is inadmissible in legal proceedings.
Hence, in order to ensure full understanding of this piece of legislation and its scope of application, further guidance and training should be provided to the staff of fisheries enforcement authorities, including IFCAs.
It is important to acknowledge that low rates of inspection are not prevalent in all IFCA districts.
For example, we have been provided with data from the Southern IFCA which shows that in 2012-13 a total of 280 compliance checks at sea were made and a total of 251 compliance checks in port were made.
Further, in 2013-14, 232 compliance checks at sea were made and 179 compliance checks at port were made. In 2014-2015, 153 compliance checks at sea were made and 292 compliance checks at port were made. This therefore portrays a very different picture with a high number of inspections being undertaken in the Southern District.
In addition, for the period 2014-2015, the North Western IFCA reported 96 compliance checks at sea and 1078 compliance checks in port, which reveals also an intensive enforcement activity in that district, especially concerning compliance once catches have been landed.
With respect to recent cases, the Eastern IFCA annual report states that during the period 2014-2015, there were no court prosecutions, one written warning, and no FAPs issued. While this low level of enforcement activity could suggest that almost all fishers in the Eastern district are compliant with local by-laws, the rate of actual compliance is unknown.
The Devon and Severn IFCA issued a total of ten penalties for breaches of local fishing by-laws in 2012 and 2013. Of these, seven penalties were imposed as FAPs in amounts between £250 and £1000.
Of the three that resulted in prosecutions in court, presumably because the infringements were more serious and hence a criminal conviction was deemed to be most appropriate, the fines issued by the local magistrates varied between £300 (with £548 awarded in costs) and £1,950 (with £1,530 awarded in court costs). For each prosecution brought before the court, the defendant entered a guilty plea.
Furthermore, during the years 2014 and 2015, the Devon and Severn IFCA issued 6 FAPs, 10 written warnings and brought 12 prosecutions. To date in 2016 it has issued 2 FAPs, 11 written warnings and 5 prosecutions.
Southern IFCA issued one FAP in 2013 and 3 FAPs in 2014, bringing in the same year 27 prosecutions before the court. In addition, 43 verbal warnings and 5 written warnings were issued.
The previous year, nine court prosecutions were successful and three written warnings and 36 verbal warnings were issued. During the period 2015-2016 Southern IFCA offered 5 FAPs, issued 50 verbal warnings and 8 written warnings, and brought 21 prosecutions.
In Cornwall, in February 2014, Martyn Rogers and Amy R Trawlers Ltd were convicted — following successful prosecution by the Cornwall IFCA — for offences related to scallop fishing in breach of the Scallop Dredging (Limited Fishing Time) By-law. In addition, a number of undersized scallops were found on board. Mr Rogers was fined a total of £5,000 and ordered to pay £4,500 costs; Amy R Trawlers Ltd was fined a total of £3,000 and ordered to pay £2,482.80 costs.
That year, 4 prosecutions were brought before the court and 6 FAPs were issued.
The Northumberland IFCA issued in 2014: 9 FAPS, 20 verbal warnings, 6 written warnings and only 1 prosecution.
That same year, the Kent and Essex IFCA issued 2 FAPs, 18 verbal warnings, 4 written warnings and also 1 prosecution.
The North Eastern IFCA issued in 2014, 4 FAPs, 20 verbal warnings, 2 written warnings and 3 court prosecutions.
Also in 2014, the North Western IFCA issued 1 FAP, 71 verbal warnings, 8 written warnings and 3 prosecutions.
The Sussex IFCA does not report any information on enforcement in its annual report for the period 2014-2015 and the Isles of Scilly IFCA has not published its annual reports for the periods of 2013-2014 or 2014-2015.
Again, as noted above, we understand that these IFCA cases are not generally reported to the MMO or Defra for inclusion in their records, or the national register of infringements.
In the case of serious infringements, IFCAs are also required to inform the MMO of decisions concerning the application of points, and although the MMO’s data shows that no points have been applied, the lack of a national reporting registration system for infringements suggests that in the face of a serious infringement, the UK would be in breach of this reporting obligation.
This situation, in turn, creates uncertainty about compliance and transparency, ultimately preventing the public from assessing the effectiveness of the measures taken by the authorities to combat infringements relating to sea fishing.
Source: ClientEarth, The Control and Enforcement of Fisheries in England, November 2016, to view click here.
MARINET observes: Does this low prosecution rate by the MMO and IFCAs indicate that the UK fisheries industry is in fact very law abiding and behaves with admirable respect for the well-being of our fish stocks and seas, or does it indicate severe lassitude and disinterest on the part of the regulators (MMO and IFCAs) when it comes to fulfilling their duty?
The answer probably lies in a recent report on this subject written by ClientEarth which reviews the enforcement record of EU Member States with regard to the CFP’s rules. We quote:
“The number of infringements reported by different Member States varies massively. In England and France, almost 20% of boats inspected at sea were breaching the law, while the number in Ireland and Poland was 3.2% and 2.6% respectively.
Prosecutions are rare and fines are low.
So far this year [2016], the English Marine Management Organisation has brought two successful prosecutions in front of the courts, resulting in fines of £500 each.
In France, data on fines or other penalties (like suspension or withdrawal of fishing licences) is not transparent and almost 90% of criminal prosecutions are settled out of court. In Ireland, the average fine is €1,450 (£1,242) and in parts of Poland it is as low as €288 (£258), even for “serious” infringements.
Authorities can also penalise fishers breaking the law using a point system. For each serious infringement, the offender receives a number of penalty points; once certain thresholds are reached, its fishing licence can be suspended or revoked.
However, Poland has never issued any points, Ireland’s system is on hold pending two court cases, France has no record of issuing penalty points — though it claimed orally that it had — and England has no evidence of points being given.”
So, it would seem clear that the enforcement attitude of the MMO and IFCAs is at fault. If it is not, why else would the MMO not release the national register of fisheries infringements compiled under the CFP Control Regulation, as reported at the beginning of this item? This is a public document. What is there to hide?
