Procurator Fiscal v Slater Main and Wanderer Fishing Company
| Jurisdiction | Scotland |
| Judgment Date | 27 May 1998 |
| Date | 27 May 1998 |
| Court | Sheriff Court |
(Smith, Sheriff)
Sea Territorial waters Bays Closing lines Fisheries Sea fishing within Firth of Clyde Whether permitted Inshore Fishing (Prohibition of Fishing and Fishing Methods) (Scotland) Order 1989 (the 1989 Order) Validity of the 1989 Order Territorial Waters Order in Council 1964 (the 1964 Order in Council) Whether Clyde Bay closing line drawn in conformity with Article 4 of the 1964 Order in Council
Relationship of international law and municipal law Geneva Convention on the Territorial Sea and Contiguous Zone, 1958 1964 Order in Council giving effect to Geneva Convention Whether Clyde Bay closing line drawn in conformity with Article 4 of the 1964 Order in Council The law of Scotland
Summary: The facts:The Procurator Fiscal charged the first accused, the master of the fishing vessel, Wanderer II, registered at Inverness, and the second accused, its owner, the Wanderer Fishing Company Limited, upon a Summary Complaint. It was alleged that, by sea fishing within the Firth of Clyde on Sunday 23 March 1997, the accused had contravened Article 3(1) of the Inshore Fishing (Prohibition of Fishing and Fishing Methods) (Scotland) Order 1989 (the 1989 Order), which in turn was an offence under section 4 of the Inshore Fishing (Scotland) Act 1984 as amended (the 1984 Act).2
The 1984 Act empowered the Secretary of State3 to make Orders regulating sea fishing in Scottish inshore waters around the whole of the coast of Scotland, these waters extending six miles to seaward of the baselines from which the
breadth of the territorial sea was measured. The accused maintained that the 1989 Order made by the Secretary of State was ultra vires. The Firth of Clyde was determined to be a bay in terms of Article 5(1) of the Territorial Waters Order in Council 1964 (the 1964 Order in Council). The accused claimed that the Clyde Bay closing line had not been drawn in conformity with Article 4 of the 1964 Order in Council.4 Since the Secretary of State could only make Orders for sea fishing within Scottish inshore waters as defined above, the 1989 Order was ultra vires if the wrong bay closing line had been used as the baseline for the measurement of the territorial seaHeld:The accused were acquitted.
(1) The 1989 Order was not necessarily ultra vires if the Clyde Bay closing line had not been drawn in conformity with the 1964 Order. Although there were grounds for believing that the line had been drawn in contravention of Article 4(c) of the 1964 Order, it could not be said upon the evidence in this case where the true closing line lay. The question of onus was therefore crucial. Since the Crown had accepted the onus but failed to prove the validity of the Order, both of the accused had to be acquitted (pp. 6712).
(2) The evidence revealed that the baseline concept for the measurement of the territorial sea of the United Kingdom was a novelty following the coming into force of the Geneva Convention on the Territorial Sea and Contiguous Zone, 1958. It was unfortunate that the solution adopted for the unusual problems of the west coast of Scotland of lines joining fixed geographical coordinates, as set out in the Schedule to the 1964 Order in Council, had not included a further co-ordinate, which would have encompassed the Firth of Clyde and avoided the problem (p. 672).
(3) While the bay closing line had been drawn to conform exclusively with Article 4(c) of the 1964 Order in Council, since Clyde Bay had been determined to have one mouth and the distance between the natural entrance points exceeded 24 nautical miles, the bay closing line should have been drawn in accordance with Article 4(b). Article 4(c) should only have applied where neither Article 4(a) nor 4(b) applied. Even if Article 4(c) did apply, the closing line had not been drawn in accordance with its terms (pp. 6723).
(4) The Clyde Bay closing line as drawn was inept. Unassisted by authorities or explanation as to why the 1958 Convention or 1964 Order in Council were so framed, the provisions of Article 4 of the 1964 Order in Council made perfect sense as they stood. The purpose of Article 4 was to establish bay closing baselines with certainty. The closing lines drawn in accordance with Article 4(a) and (b) achieved a certain result. Although application of Article 4(c) left some scope for certainty, the line drawn in the present case resulted in
total uncertainty. Neither was it sanctioned by Article 4(c). As such, the true Clyde Bay closing line had not been established by any evidence (p. 679)The following is the text of the judgment of the Court:
The First and Second Accused were charged upon a Summary Complaint at the instance of the Procurator Fiscal, Stranraer, which complaint was in the following terms:
Both Accused tendered pleas of not guilty and following sundry procedure the case called before me for trial at Stranraer Sheriff Court on 15th April, 1998. The First Accused was represented by Mr Yule, Solicitor, Aberdeen and the Second Accused by Mr Steel also Solicitor, Aberdeen. The Crown were represented by the Procurator Fiscal Depute, Stranraer. Evidence was led. At the conclusion of the Crown case submissions of no case to answer were made on behalf of both Accused. Due to the lateness of the hour and the nature of one unusual issue raised in the submissions, the trial was adjourned to 27th May, 1998. It is now most convenient to give my opinion on the issues raised in the submissions in writing.
Four matters were raised in respect of the no case to answer submissions. But the central one is this. Both accused are charged with a failure to comply with the terms of the Inshore Fishing (Prohibition of Fishing and Fishing Methods) (Scotland) Order 1989, Article 3, Schedule 1 (the 1989 Order). The First Accused as master of the fishing vessel Wanderer II registered at Inverness as INS 161. The Second Accused as owners of the vessel. The alleged offence being that on the date libelled, the vessel was engaged in sea fishing, at the position libelled in the complaint. Put shortly, the alleged offence comes to this. The 23rd March, 1997 was a Sunday. Article 3(1) of the 1989 Order prohibits fishing for sea fish by various methods within the Scottish inshore water specified in the second column of Schedule 1 to the Order during the periods specified in the third column. In relation to the Firth of Clyde the relevant provision is found in paragraph 5 of the Schedule. The area of sea being the Firth of Clyde being defined in column 2. The period of prohibition specified in column 3 is from midnight on Friday to midnight on Sunday from 1st January to 31st December in each year. The Firth of Clyde is defined as being the sea area within a straight line drawn from a point on the mainland at 55 degrees 179 North latitude, and 05 degrees 478 West latitude (Mull of Kintyre) to a point on the mainland at 55 degrees 005 North latitude and 05 degrees 094 West longitude (Corsewall Point). What this means is best explained by reference to two productions. Crown Production number 2 and Defence Production number 1 are charts issued by the Hydrographic Office of the United Kingdom. The former being chart 2724 the North Channel to the Firth of Lorne, and the latter chart 2199 North Channel, Northern Part. Such a straight line runs from the point marked on each chart as the Mull of Kintyre Lighthouse to Corsewall point Lighthouse situated on the Rhins of Galloway in Wigtownshire. As an undisputed matter of fact the geographical position where the Wanderer II was alleged to have been fishing on the day in question is some 6 miles south west of Ailsa Craig, and thus well to the north of the straight line so defined. And thus prima facie within the area of sea defined as the Firth of Clyde in the 1989 Order. Hence the alleged contravention of the prohibition, which in turn is an offence in terms of the Inshore Fishing (Scotland) Act 1984 as amended, section 4 (the 1984 Act).
The central issue relates to a challenge made by the Accused that the 1989 Order, made by the Secretary of State is ultra vires. It comes in this way. Section 1(1) of the 1984 Act as originally enacted empowers the Secretary of State to make orders regulating fishing for sea fish in any specified sea area within Scottish inshore waters. Section 2 sets out what such Orders may prohibit. Section 9 defines the term Scottish inshore waters as meaning the sea adjacent to the coast of Scotland and to the landward of a limit of six miles from the...
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