Seanad Éireann debate -
Thursday, 14 Dec 1961

Vol. 55 No. 1

Foyle Fisheries (Amendment) Bill, 1961—Second and Subsequent Stages.

Question proposed: "That the Bill be now read a Second Time."

Minister for Lands (Mr. Moran)

This short Bill to amend the Foyle Fisheries Act, 1952, is the outcome of agreement reached in August of last year when I visited Belfast for a discussion with Lord Glentoran, then Minister of Commerce. We reviewed the general policy and operations of the Foyle Fisheries Commission since its establishment in 1952 and noted the need for strengthening the existing legislation in certain respects, in particular as regards the severity of penalties for the poisoning of fish.

The main provisions are contained in Sections 3, 5 and 7 of the Bill which are complete in themselves and which I shall deal with fully in a few moments. Sections 4, 6, 8 and 9 consist of insertions and substitutions, the effect of which has been indicated in the notes circulated for the information of Senators. These notes also show in regard to Section 10 of the Bill the side titles of the provisions of the Fisheries (Consolidation) Act, 1959, which are to apply in the Moville Area instead of the corresponding provisions which already apply there in their pre-1959 from; in this connection the Moville Area is the part of the Foyle Area within the State.

I think Senators have got the same explanatory memorandum that was circulated when the Bill was before the Dáil.

The first section has the effect of writing in these amendments into the Principal Act of 1952. All the definitions contained in Section 2, other than that substituting the Minister for Lands for the Minister for Agriculture in consequence of transfer of functions which took place in 1957, relate to the provisions in Section 3 concerning the use or possession of deleterious matter. There was no definition of "deleterious matter" in the 1952 Act and the new definition is somewhat more comprehensive than that in the Fisheries (Consolidation) Act, 1959.

Section 3 will be seen to provide for a single Section in substitution for Sections 41 and 42 of the 1952 Act, relating to the use or possession of explosives and of deleterious matter for the capture, destruction or injury of fish. The existing maximum fines are £100 under Section 41 and £50 under Section 42, in place of which we now propose—

(a) on summary conviction, a fine not exceeding £100 or imprisonment for a term not exceeding 6 months or both such fine and such imprisonment;

(b) on conviction on indictment, a fine not exceeding £500 or imprisonment for a term not exceeding two years or both such fine and such imprisonment.

The application of the Probation of Offenders Act is also to be excluded in relation to offences under the new Section.

Section 5 makes it an offence to use a boat or vehicle as an aid to the commission of any other fishery offence and provides for penalties on the same scale as in Section 3. In addition to the monetary and prison penalties, provision is also made in subsection (3) of the inserted Section 52A for forfeiture by Court Order of a vehicle used in the commission of an offence where the conviction is obtained on indictment.

This is an appropriate place to refer to Section 8, the effect of which is to render a boat used in the commission of a fishery offence automatically for-feit as a statutory consequence of conviction. To conclude this group of Sections, Section 7 provides for a redrafting of Section 65 of the Principal Act so as to include boats along with other articles which have been abandoned by their owners and which since no charge is likely to be brought in connection with their use have to be the subject of an application to the District Court for an Order for disposal.

Before passing on from this group of sections, I should, perhaps, say that the provision for the taking of proceedings by way of indictment—now introduced for the first time in the fisheries code—is intended to signify the extremely grave view which the Government take of the use of poison or explosives to capture fish and of the use of boats or vehicles as an aid to illegal fishing which, in such cases, often forms part of a well laid plan by a gang of poachers. Where the circumstances warrant the taking of proceedings by way of indictment the usual procedure of the criminal justice code would be followed, namely, the taking of the proceedings would require the flat of the Attorney General and should the offender, at the District Court hearing for the purpose of taking depositions, elect to plead guilty, it would be competent for that Court to deal with the case summarily subject to the consent of the Attorney General.

Coming now to the remaining sections dealt with in the explanatory notes circulated with the Bill, the first is Section 4 which adds the use of a tailer or snare to the poaching methods which are prohibited by Section 43 of the Principal Act. Although the tailer is, of course, in effect, a snare with a handle attached, it has a legitimate use as an aid to lawful angling and the necessary provision is made to safeguard such use.

Section 6 comprises a number of amendments of subsection (1) of Section 64 of the 1952 Act which authorises inspection, examination and detention for the enforcement of the Act.

The first amendment extends the existing powers of entry and search to hotels, guest houses and the like. It is known that purchases of salmon for hotels and other catering premises often represent a convenient outlet for the poachers' catch—not indeed particularly in the Foyle Area but in the country as a whole. It has been open to doubt whether the existing wording enabled an authorised officer to enter such premises and carry out a search and this matter is now being put beyond doubt by adding the new category.

The next amendment to be made by Section 6 relates to the seizure of fish which in its existing form extends only to offences or suspected offences under the 1952 Act itself. By inserting "the Fisheries (Consolidation) Act, 1959" in this context, a possible defect in the powers of seizure is removed.

The final amendment to be made by Section 6 is consequential on the creation by Section 5 of the offence of using a boat or vehicle as an aid to the commission of a fishery offence; it authorises the seizure of such a boat or vehicle.

Section 9 of the Bill comprises a group of amendments relating to the Third Schedule to the Act of 1952 which relates to the powers of the Foyle Fisheries Commission. The first of these amendments makes good an important omission by enabling the Commission to take legal proceedings for the enforcement within the Foyle Area of any law relating to fisheries— and not merely the law under the 1952 Act.

The next amendment to be made by Section 9 relates to the Secretary of the Commission. At present the statutory duties of Secretary fall to be discharged by the junior members of the Commission in rotation. Paragraph (b) of this section proposes that the Commission should be empowered to appoint a whole-time Secretary subject to Ministerial approval. The former provision is, however, left standing and if the post of Secretary filled under the new power is at any time vacated the Secretaryship will, for the time being, revert to the appropriate junior member of the Commission.

Finally paragraph (c) of Section 9 enables the Commission to set up a Pensions Scheme for its officers and servants. The provisions proposed to be inserted follow, in the main, the conventional pattern of enabling clauses for a superannuation scheme.

As shown in the explanatory notes, the Table to Section 10 lists the provisions of the Fisheries (Consolidation) Act, 1959, which are to apply to the Moville Area. This clear statement as to the application of the Fishery law outside the Foyle Fisheries Acts will serve two useful purposes. In the first place it will clear up the uncertainty which has existed due to the extensive statue law revision which has taken place in recent years as to the extent to which the Fisheries Acts generally apply in the Moville Area—which, as already mentioned, is the part of the Foyle Area within the State. Secondly, since the Consolidation Act as a whole does not apply in the Moville Area the partial application to the extent shown in the Table will simplify the carrying through to the Moville Area of future amendments of that Act so that County Donegal will be kept in step with the rest of the State.

Finally, Section 11 which contains the usual provisions as to short title and collective citation also provides for commencement of the Act by Order so that when this Bill and the parallel Bill now under consideration in Belfast become law, they can, by arrangement, be brought into operation simultaneously for the entire Foyle Area.

In conclusion, I should like to say that while some of the powers proposed to be conferred on the Foyle Fisheries Commission by this Bill must appear rather drastic, I am fully satisfied that they are amply justified in the light of experience. Indeed, in a general Amendment Bill which is nearly ready and which I expect to introduce next Session corresponding provision will be included as regards penalties for poisoning and for closing the market for the poacher by inspection of hotels.

For the present, I should like the House to understand that in bringing in this Bill, I am expressing my complete confidence in the Foyle Fisheries Commission in carrying out its allotted task of preserving the highly valuable fisheries in its area. I am happy to be able to say that the Commission continues to do its work in close cooperation with the statutory Advisory Council which is representative of all fishing interests in the Foyle Area. The Commission and Council do not, of course, always see quite eye-to-eye with each other but I am satisfied that the consultation which takes places serves a very useful purpose and I hope that the new Advisory Council which has just been elected will continue to show the same constructive interest in the administration of the fisheries and continue to give the benefit of its advice and experience to the Commission and to the Ministers which is so essential to the good management of this valuable fishery.

I commend the Bill to the House for consideration. I might mention that a similar Bill is now before the Senate of Northern Ireland and it would be desirable, if the House is agreeable, to pass all stages of this Bill this evening.

Mr. Lindsay

The concluding words of the Minister, that some of the proposals contained in this Bill are drastic, almost amount to an under-statement. In spite of the drastic nature of the proposals, I am satisfied that they appear to be necessary, having regard to the fact that is an agreed measure between the Minister of the Government of the Republic of Ireland and the counterpart Minister in Northern Ireland. Broadly speaking, any such agreement reached and legislation sprining from such agreement must be welcomed as steps in the proper and desired direction.

There are two matters about which I must express an opinion. One is in connection with Section 3, whereby a boat is to be added as an article for forfeiture to the words "fishing engine" in the principal Act. I have not got with me at the moment the principal Act and I do not know what will constitute a good defence. Supposing, as is quite often the case, and is not outside the knowledge of people in the House, a boat would be stolen, would it then be the situation that a boat stolen from an innocent owner and used for poaching purposes and captured while so used, would be subject to forfeiture? Unless there is some provision that saves the innocent owner, the provision should be reviewed. It may well be that there is such a provision but I have not had an opportunity of looking at the principal Act in that regard.

The second matter on which I wish to express an opinion deals with the power of inspection. Great emphasis is laid upon the fact that hotels appear to be the great and universal receivers of poached fish. I have not had any brief or instructions from any hoteliers but, on behalf of the greatest percentage of hoteliers, I say that the implication in a universal way is something that must be resented. I know there are hotels which, while I would not go so far as to say they specialise in the purchase of poached fish, nevertheless do purchase such fish. I can say that there are two hotels in the west of Ireland where poached fish will not be bought under any circumstances, as a fixed rule of the house. A servant who is generally empowered to buy, is strictly enjoined to go to the top for directions when somebody comes with fish. To label hotels generally as the purchasers of poached fish is unfair. It may be more unfortunate than unfair. I consider it necessary that something should be said on their behalf.

Subject to the protest I have made on behalf of those hotels that I know specifically object to the purchase of poached fish and subject further to being satisfied about the question of the boat to which I have referred, I have no objection to the Minister having all stages of this Bill this evening. I know that it has happened on a few occasions that a boat which was used for poaching belonged to a per-fectly innocent party. I do not want a situation to arise wherein a boat can be stolen from somebody who has it properly moored and is used for poaching and, when the authorised officers come along and the poachers run away and are not caught, both the fishing engine and the boat may be subject to forfeiture.

Mr. Moran

First, taking the reference made by Senator Lindsay to hotels, let me say immediately, as I have said in the Dáil, that, of course, the vast majority of hoteliers do not engage in the purchase of poached fish or illegal fish.

Let me say also that it is an offence at the moment for any hotelier to purchase poached fish or illegal fish, and the power to prosecute hotels or fine hotels for any such offence is already there under the law. What is provided here is designed to clear up doubts, particularly on the inspection of hotels. The Garda and the officers of the Commission already considered that they had power to enter, under the law as it is, but some doubts were expressed elsewhere and therefore it was felt desirable to clarify the law on the power of inspection of hotels for the detection of fishery offences.

There is no other way of en-deavouring to close the door to this avenue for the disposal of poached fish to hotels and restaurants, unless hotels as a whole are dealt with under the law. I am satisfied that just as at many times it has been said if there were no receivers, there would be a lot less larceny, if there were no purchasers of poached fish, there would be a lot less poaching. I am advised, and I feel it is essential, to try to close the market for the proceeds of poaching that does exist and we consider this is the best method of doing it.

I should also make it clear in mentioning hotels that there is no specific reference to hotels in the Foyle area. This Bill is largely designed to deal with a new form of poaching where people travel long distances from cities, such as Belfast, in organised gangs and make what I would call commercial raids on this valuable fishery and dispose of their catches in most cases long distances from the Foyle area. The fact that this Bill refers to the Foyle area is not to be taken in any sense as being a specific reflection on the hotel owners and guest-house owners in that area that they are in the habit of purchasing poached fish.

As far as the point made about boats under Section 3 is concerned, this also is more for clarification purposes. Under Section 76 of the Principal Act, the reference was that "where a person is convicted of an offence against this Act, any fish illegally taken by him or in his possession at the time of the offence and also any fishing engine or thing by means or in respect of which the offence is committed shall, as a statutory consequence of conviction, stand forfeited." Under "fishing, engine or thing" boats have been already seized and forfeited and some doubts were expressed in some quarters as to whether the wording of the section did in fact cover boats, although the proposition as far as I am aware was not challenged legally in any court of competent jurisdiction. At all events, for the purpose of clarifying the law, it was felt well to take this opportunity specifically to mention boats as they are mentioned here under Section 3. There is, of course, just as with the tailer, power in the court to release the boat or the vehicle, if it were seized in such circumstances as Senator Lindsay suggests. This power of seizing boats is not new to our law. Indeed, in other branches of the law, particularly in relation to offences under the illicit distillation code, the power is also there to seize boats that are used to assist in the commission of an offence or in aiding or abetting any such offence.

It is true, as I have said, that the penalties under this Bill are serve and substantial and that policy has been agreed upon both by myself and my opposite number in Northern Ireland. We are convinced that the time has come when the penalties in connection with poaching offences must be made fit the crime. Senators are no doubt aware, particularly in connection with salmon poaching, of the amount of money that can now be obtained by poachers and the price that salmon commands on the market. I am satisfied that, in general, fines are not adequate to check the new tendency towards commercial poaching that has emerged, particularly since the War.

This form of intensive poaching on a commercial scale started, I understand, in Scotland and spread to the north of Ireland and has unfortunately drifted in some cases to us on this side of the Border. Senators will appreciate that with the methods used by these people, explosives and poisons, where they are in a position to capture 50 or 100 salmon in a raid, the amount of money they can command in such circumstances, considering the price of salmon, is a big temptation to them and any question of a fine is not going to have very much of a preventive effect on people of that kind.

Therefore, we decided that the time had come not alone for providing monetary penalties but giving the court discretion to impose substantial terms of imprisonment and providing that poaching offences can be brought by way of indictment and convicted offenders made liable to two years' imprisonment in severe cases. The question of what form of procedure will be invoked under this Act will be a matter for the Commission, but we are quite satisfied, as are our advisers, that in these days and for the reasons I have mentioned, it is essential to let the public know, and particularly to let the organised poachers know, that poaching will not pay if the offences are detected. I should also say in regard to the amendment in connection with the use of tailers that people using them legitimately for lawful salmon angling will not be liable to prosecution.

I do not think there is any other matter to which I need refer. I want to thank the House for the speedy passage they have given this Stage of the Bill.

Question put and agreed to.

Agreed to take remaining Stages today.

Bill considered in Committee.

Sections 1 and 2 agreed to.

SECTION 3.

Question proposed: "That Section 3 stand part of the Bill."

Mr. Yeats

I should like to ask the Minister if he could give us an explanation of the change being made under Section 3 as compared with Sections 41 and 42 of the Principal Act. Under this Bill, "if any person being on the bank of or near any waters has in his possession or under his control any deleterious matter he shall be guilty of an offence against this Act." In the following subsection, it says that it is open to him to prove his innocence by stating that he had these substances for an innocent purpose. Under the former sections the position was rather different. They stated that any person being on a bank or near any waters, who had these substances under his control with intent to employ them for the purpose of catching or destroying fish, was guilty of an offence. In other words until now it was for the State to prove the offence, but now we are putting in the provision that it is for the accused to prove his innocence. We are doing this for the Foyle area only, because the old provisions under the Fisheries (Consolidation) Act, 1959, still remain in force in the rest of the country, under which the State must prove intent to employ these substances for destructive purposes.

Obviously, the general principle of legislation of this kind is undesirable. However, we all know there are cases where it is essential to have legislation of this kind because of difficulties of proof in court. But I feel that we should never let a provision like this into a Bill without, first, being quite clear what we are doing and, secondly, being quite clear why we are doing it. For that reason I would be glad if the Minister would give us an explanation as to why this change has been necessary.

Mr. Moran

I do not think it is quite correct to state that this question of onus is new. For instance, subsection (1) Section 35 of the Foyle Fisheries Act, 1952, states:

If any person buys, sells, exposes for sale or has in his possession any salmon or trout unlawfully captured such person shall be guilty of an offence...

and he shall be subject to such and such a penalty.

Subsection (2) of the same section provides:

In any proceedings under this section, the onus of proving that the salmon or trout, the subject of the proceedings, was lawfully captured shall lie on the defendant.

Therefore, in the existing code under the Foyle Fisheries Act, 1952, the onus was on the defendant if he were apprehended in these circumstances.

On this section, I would point out that the definition of deleterious matter has been widened and extended, particularly to deal with poisons and explosives. In addition, the penalties have been drastically increased. It was felt that the statutory defence should be available to a defendant who is able to prove that the poison or the explosive he had in his possession was for a lawful purpose. The Senator can visualise that some rivers adjoin roads, in many cases public roads. The fact that people may be going to their own lands by the banks of the river and have some of the forbidden material for a lawful purpose must be contemplated. Under this section the onus will be on the defendant to show that what he had in his possession was for an innocent purpose.

In view of what might arise and in view of the severity of the penalties I am now asking the House to approve, it was felt that this specific statutory protection should be there for innocent people who might be charged with such an offence. We felt it was a safeguard, and that is the reason this escape clause was put there.

Question put and agreed to.

Section 4 agreed to.

SECTION 5.

Question proposed: "That Section 5 stand part of the Bill."

Mr. Yeats

I do not quite understand this section. It appears under Section 52 (a), subsection (1)—I may be wrong in this—that a person who commits an offence outside the State against the legislation of Northern Ireland can be prosecuted in the district court inside the State. It may not mean that, but could the Minister state whether it does or not?

Mr. Moran

I agree it is difficult to follow this with the cross references to the other statutes involved. It has been provided under the Principal Act, and in fact this wording follows some sections of the Principal Act, that people for an offence in Northern Ireland can be apprehended here by a Garda or a member of the Commission and handed back to the police force in Northern Ireland to stand their trial there. In the same way people who commit offences here and are resident in Northern Ireland, if they are apprehended on the Northern side of the Border, can be handed over to stand their trial here for the offences committed here.

There is a similar provision in the 1952 Act. I am aware, however, that the wording in connection with the current law of Northern Ireland has been taken from the Principal Act. The Senator will appreciate that in the Foyle area it is not unusual for people from north of the Border to come down and poach on the part of the fishery within our jurisdiction, and in some cases people from our jurisdiction go over to the other side to do their poaching. The position now is that they can be prosecuted on either side.

Section 62 of the Principal Act states:

(1) If, within the Foyle Area, any person (in this Section referred to as the offender) is found offending against the provisions of the Fisheries Acts or this Act or the corresponding law of Northern Ireland, the following provisions shall have effect:—

(a) an authorised person may required the offender to do either or both of the following things—

(i) desist from such offence;

(ii) give his name and address;

(b) if the offender, after being so required, wilfully continues such offence or fails or refuses to give his name and address, the authorised person, and any persons acting under his directions may apprehend the offender;

(c) where the offender is apprehended under this section by an authorised person who is not a member of the Garda Síochána, that person shall, subject to subsection (2) of this section forthwith deliver the offender into the custody of a member of the Garda Síochána to be dealt with according to law.

(2) If the authorised person who apprehended the offender or a member of the Garda Síochána into whose custody he had been delivered has reason to believe that—

(a) the offender is resident in Northern Ireland and,

(b) the offence is an offence under the said corresponding law of Northern Ireland he may forthwith deliver the offender into the custody of a member of the police forces of Northern Ireland to be dealt with according to that law.

I should say that the Bill now before the Senate of Northern Ireland contains similar provision for handing people over to the Garda here.

Mr. Murphy

It does seem that we have more care for the salmon of Northern Ireland than for its people. There is provision here in respect of people who poach Northern Ireland salmon. I suppose that could not be done without an extradition treaty, or are we to suppose that is not necessary?

Mr. Moran

This provision is nothing new. This is the law in connection with poaching in the Foyle area since 1952. I feel sure the Senator is familiar with the Foyle Fisheries. Here is a measure agreed between the two Governments. It is the only statutory provision I know of in which there are reciprocal powers of this kind.

Mr. Murphy

Has that power ever been exercised?

Mr. Moran

Yes.

Mr. Yeats

Section 62 of the Principal Act does not, I feel, cover the point. This section appears, on the face of it, to be somewhat ambiguous. The only sense I can read into it is that an offender may start off in a boat in our territoral waters and end up in Northern Ireland.

Question put and agreed to.

Sections 6 to 11, inclusive, agreed to.

Title agreed to.

Bill reported without amendment.

Bill received for final consideration and passed.