Written Answers. - Marine Legislation.
Michael McDowell
Question:
38
Mr. M. McDowell
asked the
Minister for the Marine
the steps, if any, he has taken to ensure that the legislature is fully informed of the Fishing Act, 1994, which allows for the forfeiture of vessel, gear and catch.
[2133/96]
Liz O'Donnell
Question:
39
Ms O'Donnell
asked the
Minister for the Marine
the steps, if any, he has taken to ensure that the legislature is fully informed of the Fishing Act, 1994, which allows for the forfeiture of vessels, gear and catch.
[2138/96]
I propose to take Questions Nos. 38 and 39 together.
The provisions of the Fisheries (Amendment) Act, 1994, including those which relate to the forfeiture of vessels, catch and gear, were discussed at considerable length in the House during the passage of the Bill.
Indeed the Official Report shows that the Deputies' party colleagues, Deputies Clohessy and Molloy, made substantial and knowledgable contributions to that debate on the First and Second Readings and on Committee Stage. However, I am glad to have this opportunity to again outline the relevant provisions of the Act.
The section in question extends the circumstances in which the courts may order the confiscation of a fishing vessel. Such confiscation can arise on conviction for serious breaches of fisheries law which threaten stock conservation. It is of course a matter for the courts to determine and impose penalties available under the law.
Following the introduction of a provision in the 1983 Fisheries Act, which provided for the confiscation of a vessel convicted of repeat offences, it became apparent that after conviction on a first offence, owners frequently transferred ownership of the vessel to another company. In those circumstances, each conviction becomes a first conviction and the threat of forfeiture could be avoided.
To address this loophole, the 1994 Fisheries (Amendment) Act places upon the owner of a vessel the onus of proving that the transfer of ownership is bona fide, at arms length and that the sale price reflects the going market rate for the vessel.
The courts may, also, under the 1994 Act order a vessel to be confiscated on a first conviction if the offence is considered to have been a particularly grave violation of conservation measures.
For ease of reference and for the Deputies' information, I have annexed to my reply a copy of the relevant section of the Act which deals with the matters which the Deputies have raised.
12.—Section 234 of the Principal Act (inserted by the Act of 1978) is hereby amended by the substitution of the following subsection for subsection (1) thereof:
"234.—(1) Where a sea fisheries protection officer has in exercise of the powers conferred on him by section 233 detained a boat and the persons on board the boat at a port, any sea fisheries protection officer shall, as soon as may be, bring the master of the boat and any other persons on board the boat against whom proceedings for an offence under a provision of Chapter II or III of this Part have been or are about to be instituted before a judge of the District Court and thereupon the said judge shall, if he is satisfied that such proceedings have been or are about to be instituted against the master and those other persons or any one or more of them, by order directed to a sea fisheries protection officer require such officer to detain at a specified port in the State the boat and each person (including the master) aforesaid in respect of whom he is so satisfied until such proceedings have been adjudicated upon by a judge of the District Court under section 8 or 13 of the Criminal Procedure Act, 1967, or under section 2 (2) of the Fisheries (Amendment) Act, 1978, or otherwise in the exercise of his summary jurisdiction.".
13.—Section 302 of the Principal Act (inserted by the Act of 1962) is hereby amended by the substitution of "Act" for "Part" in each place that it occurs therein.
14.—The Act of 1978 is hereby amended by the substitution of the following section for section 4 (as amended by section 7 of the Act of 1983) thereof:
"4.—(1) Where on conviction on indictment of a person for an offence under any of the following sections of the Principal Act, that is to say, sections 221, 222, 222A, 222B, 222C, 223, 223A, 224B, 226 and 227—
(a) that offence (or that offence when taken in conjunction with any other offence or offences, under any of those sections, of which that person has been so convicted) is considered by the Court to constitute a serious abuse of measures prescribed and adopted under section 223A (1) (inserted by section 4 of the Act of 1983), or
(b) (i) the conviction is a second or subsequent conviction on indictment for an offence under any of those sections committed on board the same boat within three years of the date of the commission of the previous offence and whether the person convicted is or is not the same person on each occasion, and
(ii) the boat is at the time of the commission of the offence owned or part owned by a person who was the owner or part owner of the boat on the occasion of the commission of any of the previous offences referred to in subparagraph (i),
the Court may, at its discretion, in addition to any other fines and forfeitures to which the person may be liable, order the boat to be forfeited.
(2) Where—
(a) the conviction is a second or subsequent conviction on indictment for an offence under one of the sections mentioned in subsection (1) committed on board the same boat and the date of the second or subsequent offence is within three years of the date of commission of the previous offence and whether the person convicted is or is not the same person on each occasion, and
(b) the ownership has changed between the commission of the first and second or subsequent offences, then if the Court is satisfied that there are reasonable grounds for believing that the change of ownership has been effected in order to evade a possible forfeiture of the boat upon a subsequent conviction the onus shall be on the owner to furnish to the Court sufficient evidence showing, to the satisfaction of the Court, that—
(i) neither the legal or beneficial ownership of nor any legal or beneficial interest in the boat remains with the owner or a part owner of the boat at the time of the previous offence, and
(ii) the sale, assignment or transfer of the boat was done in good faith and for valuable consideration reflecting the market price or worth of the boat for the period in which it was acquired,
and where such evidence fails to satisfy the Court,
the Court may, at its discretion, in addition to any other fines and forfeitures to which the person may be liable, order the boat to be forfeited.
(3) For the purposes of this section owner and part owner shall include a person who, although no longer the legal owner or part owner, handles, manages or carries on the operation of the boat.
(4) The Court shall not order any boat to be forfeited pursuant to subsection (1) or (2) if a person claiming to be the owner of or otherwise interested in it applies to be heard before the Court to show cause why the order should not be made.
(5) The Court in ordering the forfeiture of a boat under this section may, if a mortgagee or chargeholder satisfies the Court that he granted a mortgage or charge in respect of the boat to its owner or owners in good faith, order that the boat be sold and that some or all of the proceeds be paid to the mortgagee or chargeholder to meet the outstanding mortgage or charge.".
15.—(1) In this section "officer to whom this section applies" means an officer of the Minister, a sea fisheries protection officer, an authorised person or an authorised officer as defined for the purposes of any section of the Principal Act.
(2) Any person who assaults an officer to whom this section applies in the exercise of any power conferred on that officer by any provision of the Principal Act shall be guilty of an offence and shall be liable—
(a) on summary conviction, to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months, or to both;
