The Sea Fishing (Penalty Notices) (Wales) Order 2019

Made: 20th February 2019

Laid before the National Assembly for Wales: 26th February 2019

Coming into force: 22nd March 2019

The Welsh Ministers, in exercise of the powers conferred by section 30(2) and (2ZA) of the Fisheries Act 1981 now vested in them and sections 294 and 316(1)(b) of the Marine and Coastal Access Act 2009 , make the following Order.

Title, commencement and application

1

• (1) The title of this Order is the Sea Fishing (Penalty Notices) (Wales) Order 2019.

• (2) This Order comes into force on 22 March 2019.

• (3) This Order applies in relation to Wales and the Welsh zone.

Interpretation

2

In this Order—

• “officer” (“swyddog”) means a marine enforcement officer within the meaning of section 235(1)(b) of the Marine and Coastal Access Act 2009;

• “penalty” (“cosb”) means the amount specified in a penalty notice;

• “penalty notice” (“hysbysiad cosb”) means a notice offering the opportunity, by payment of a specified amount in accordance with this Order, to discharge any liability to be convicted of the penalty offence to which the notice relates;

• “penalty offence” (“trosedd cosb”) means an offence (other than one involving assault, obstruction or failure to comply with a requirement imposed by a person) listed in the Schedule.

• “Wales” (“Cymru”) has the same meaning as in section 158(1) of the Government of Wales Act 2006;

• “the Welsh zone” (“parth Cymru”) has the same meaning as in section 158(1) of the Government of Wales Act 2006.

Issue of penalty notice

3

• (1) Where an officer has reason to believe that a person has committed a penalty offence, the officer may issue that person with a penalty notice for an amount not exceeding £10,000.

• (2) In determining the penalty, an officer must have regard to any guidance given by the Welsh Ministers on matters to be taken into account when making such a determination.

• (3) A penalty notice is issued at the time when it is sent by post or delivered by hand to the person to whom it relates.

Content of penalty notice

4

• (1) A penalty notice issued under article 3 must—

• (a) give particulars of the penalty offence;

• (b) state the amount of the penalty;

• (c) state the period during which, by virtue of article 5, proceedings will not be taken for the offence;

• (d) state the person to whom, and the address at which, the penalty may be paid; and

• (e) state that payment must not be in cash.

Restriction on proceedings for penalty offence

5

• (1) Where a person is issued with a penalty notice—

• (a) no proceedings may be brought against that person for the penalty offence to which that notice relates before the end of the period of 28 days beginning with the date on which that notice was issued; and

• (b) that person may not be convicted of the offence if the penalty is paid before the end of that period.

• (2) Paragraph (1)—

• (a) is subject to article 10; and

• (b) does not apply if the penalty notice is withdrawn in accordance with article 9.

Payment of penalty

6

• (1) Payment of a penalty must be made to the person specified in the penalty notice by sending it by post or by such method as may be specified in the notice.

• (2) It may not be made in cash.

Payment of one penalty treated as payment of connected penalties

7

• (1) Where a person (“A”) pays the penalty in accordance with article 6, an officer must give a notice (a “notice of deemed payment” (“hysbysiad taliad tybiedig”)) to all other persons who have been issued with a connected penalty notice.

• (2) A penalty notice is a “connected penalty notice” (“hysbysiad cosb cysylltiedig”) if the penalty offence to which that notice relates is the same as, and arises out of the same set of circumstances as, the penalty offence to which the penalty notice issued to, and paid by, A relates.

• (3) A notice of deemed payment must—

• (a) be sent by post or delivered by hand;

• (b) indicate that A has paid the penalty for A's connected penalty notice;

• (c) indicate that the penalty notice issued to the recipient of the notice of deemed payment will be treated as having been paid unless that person gives written notice indicating that it should not be so treated (a “notice of objection” (“hysbysiad gwrthwynebu”)); and

• (d) state the name and address of the person to whom any notice of objection must be given.

• (4) A notice of objection must be sent by post or delivered by hand to the person stated in paragraph (3)(d) within—

• (a) 28 days beginning with the date on which the penalty notice was issued; or

• (b) if later, 5 days beginning with the date on which the notice of deemed payment was given.

• (5) If no notice of objection is given in accordance with this article, the penalty notice issued to a person who has been given a notice of deemed payment is to be treated as having been paid.

Certificate of payment or non-payment of penalty notice

8

In any proceedings a certificate purporting to be signed by or on behalf of the Welsh Ministers stating that payment in respect of a penalty notice was or was not received on or before a date specified in the certificate is evidence of the facts stated.

Withdrawal of penalty notices

9

• (1) A penalty notice may be withdrawn by an officer who has reason to believe that it ought not to have been issued (whether to the person named in the penalty notice or otherwise).

• (2) A penalty notice may be withdrawn before or after payment of the penalty.

• (3) If a penalty notice is withdrawn any penalty paid must be repaid.

Commencement of proceedings after payment of penalty in relation to fishing boats from outside the United Kingdom

10

• (1) This article applies in relation to a penalty notice issued to the master, owner or charterer of a fishing boat other than an English, Northern Ireland, Scottish or Welsh fishing boat.

• (2) Where a person in receipt of a penalty notice has paid the penalty, that person may give written notice requesting that proceedings be brought for the penalty offence to which the penalty notice relates.

• (3) Such notice must—

• (a) indicate that the person giving the notice wishes proceedings to be brought for the penalty offence to which the penalty notice relates; and

• (b) be given no later than the end of the period of 28 days beginning with the date on which the penalty notice was issued.

• (4) Where a person has given such notice, proceedings may be brought against that person.

• (5) Where such proceedings are discontinued or the person is acquitted of the offence, the penalty notice is to be treated as never having been issued and any penalty paid must be repaid.

• (6) Where a person is convicted of the offence, the penalty notice is to be treated as never having been issued and paragraph (7) or (8) applies as appropriate.

• (7) If a fine is imposed on the person in respect of the penalty offence an officer must—

• (a) apply so much of the penalty as does not exceed the amount of the fine in or towards payment of the fine; and

• (b) repay any amount of the penalty in excess of the amount of the fine.

• (8) If no fine is imposed on the person in respect of the penalty offence, any penalty paid must be repaid.

Transitional provision

11

• (1) This article applies where—

• (a) a person has been issued with a penalty notice under the Sea Fishing (Enforcement of Community Measures) (Penalty Notices) Order 2008 ; and

• (b) the penalty has not been paid in accordance with article 6, nor has the penalty notice been withdrawn under article 9 of that Order.

• (2) The penalty notice is deemed to have been issued under this Order.

Revocation

12

The Sea Fishing (Enforcement of Community Measures) (Penalty Notices) Order 2008 is revoked.

SCHEDULE — Offences relating to sea fishing

1

In the Sea Fisheries (Shellfish) Act 1967 , an offence under—

• (a) section 3 (effect of grant of right of regulating a fishery);

• (b) section 7 (protection of fisheries);

• (c) section 14 (supplementary provisions as to orders under sections 12 and 13);

• (d) section 16 (oysters not to be sold between certain dates);

• (e) section 17 (taking and sale of certain crabs and lobsters prohibited).

2

In the Sea Fish (Conservation) Act 1967 , an offence under—

• (a) section 1 (size limits, etc for fish);

• (b) section 2 (size limits for fish for use in course of any business);

• (c) section 3 (regulation of nets and other fishing gear);

• (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (e) section 4A (licensing of vessels receiving trans-shipped fish);

• (f) section 5 (power to restrict fishing for sea fish);

• (g) section 6 (prohibition on landing of sea fish caught in certain areas);

• (h) section 8 (regulation of landing of foreign-caught sea fish).

3

An offence under section 5 of the Sea Fisheries Act 1968 (regulation of conduct of fishing operations).

4

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5

An offence under section 30 of the Fisheries Act 1981 (enforcement of Community rules).

6

In the Marine and Coastal Access Act 2009, an offence under—

• (a) section 139(1)(b) (offence of contravening byelaws or orders), in so far as it relates to any order made under—

• (i) section 134A (orders relating to exploitation of sea fisheries resources: Wales);

• (ii) section 134B (orders relating to exploitation of sea fisheries resources: Welsh offshore region);

• (iii) section 136(1A) (interim orders);

• (b) section 190 (offences).

7

An offence under regulations 3 to 11 of the Registration of Fish Buyers and Sellers and Designation of Fish Auction Sites (Wales) Regulations 2006 .

8

An offence under article 9 of the Sea Fishing (Illegal, Unreported and Unregulated Fishing) Order 2009 .

9

In this Schedule, reference to a section includes subordinate legislation made under that section.

Signed

Lesley Griffiths — Minister for Environment, Energy and Rural Affairs, one of the Welsh Ministers — 2019-02-20

Explanatory note

(This note is not part of the Order)

Footnotes

[^f00001]: 1981 p. 29 (“Deddf 1981”); mewnosodwyd adran 30(2ZA) gan adran 293(3) o Ddeddf y Môr a Mynediad i’r Arfordir 2009 (p. 23). Gweler adran 30(3) i gael y diffiniad o “the Ministers”.

[^f00002]: Cafodd swyddogaethau’r Gweinidogion o dan adran 30 o Ddeddf 1981, i’r graddau yr oeddent yn arferadwy o ran Cymru, eu trosglwyddo i Gynulliad Cenedlaethol Cymru a’u trosglwyddo wedyn o’r corff hwnnw i Weinidogion Cymru: gweler erthygl 2(a) o Orchymyn Cynulliad Cenedlaethol Cymru (Trosglwyddo Swyddogaethau) 1999 (O.S. 1999/672) ac Atodlen 1 iddo a pharagraff 30 o Atodlen 11 i Ddeddf Llywodraeth Cymru 2006 (p. 32). Cafodd swyddogaethau’r Gweinidogion o dan adran 30 o Ddeddf 1981, i’r graddau yr oeddent yn arferadwy o ran parth Cymru, eu trosglwyddo i Weinidogion Cymru gan erthygl 4(1)(e) o Orchymyn Parth Cymru (Ffiniau a Throsglwyddo Swyddogaethau) 2010 (O.S. 2010/760). Cafodd y swyddogaethau hynny eu trosglwyddo ymhellach, ar sail gydredol, o ran cychod pysgota Cymru y tu hwnt i derfyn parth Cymru tua’r môr gan adran 59A o Ddeddf Llywodraeth Cymru 2006 a pharagraff 2(1) o Atodlen 3A iddi.

[^f00003]: 2009 p. 23.

[^f00004]: O.S. 2008/984.

[^f00005]: 1967 p. 83; diwygiwyd adran 3 gan adrannau 204, 206 a 207 o Ddeddf y Môr a Mynediad i’r Arfordir 2009, adran 72 o Ddeddf yr Amgylchedd (Cymru) 2016 (dccc 3) ac O.S. 2015/664. Diwygiwyd adran 7 gan adrannau 210 a 211 o Ddeddf y Môr a Mynediad i’r Arfordir 2009, adran 2 o Ddeddf Gwerthu Nwyddau (Diwygio) 1994 (p. 32), ac O.S. 2015/664. Diwygiwyd adran 14 gan adrannau 35, 37, 38 a 46 o Ddeddf Cyfiawnder Troseddol 1982 (p. 48), Atodlen 8 i Ddeddf Cyfiawnder Troseddol a Threfn Gyhoeddus 1994 (p. 33), ac adran 6 o Ddeddf Clefydau Pysgod 1983 (p. 30). Diwygiwyd adran 16 gan adrannau 35, 37, 38 a 46 o Ddeddf Cyfiawnder Troseddol 1982, Atodlen 8 i Ddeddf Cyfiawnder Troseddol a Threfn Gyhoeddus 1994 ac adran 1 o Ddeddf Pysgodfeydd Môr (Pysgod Cregyn) 1973 (p. 30). Diwygiwyd adran 17 gan adrannau 212 a 213 o Ddeddf y Môr a Mynediad i’r Arfordir 2009, adrannau 35, 37, 38 a 46 o Ddeddf Cyfiawnder Troseddol 1982, ac Atodlen 8 i Ddeddf Cyfiawnder Troseddol a Threfn Gyhoeddus 1994.

[^f00006]: 1967 p. 84; amnewidiwyd adran 1 gan adran 19 o Ddeddf Pysgodfeydd 1981 (p. 29) a’i diwygio gan adran 314 o Ddeddf Llongau Masnach 1995 (p. 21) a pharagraff 38 o Atodlen 13 iddi, adran 194 o Ddeddf y Môr a Mynediad i’r Arfordir 2009, O.S. 1999/1820 ac O.S. 2010/760. Diwygiwyd adran 2 gan adran 19 o Ddeddf Pysgodfeydd 1981 ac O.S. 1999/1820. Diwygiwyd adran 3 gan adran 195 o Ddeddf y Môr a Mynediad i’r Arfordir 2009, paragraff 7 o Atodlen 14 iddi, paragraff 2 o Atodlen 15 a Rhan 4 o Atodlen 22 iddi, Atodlen 2 i Ddeddf Terfynau Pysgodfeydd 1976 (p. 83) ac O.S. 1999/1820. Amnewidiwyd adran 4 gan adran 3 o Ddeddf Terfynau Pysgodfeydd 1976 a’i diwygio gan adran 20 o Ddeddf Pysgodfeydd 1981, adran 1 o Ddeddf Pysgod Môr (Cadwraeth) 1992 (p. 60), adrannau 4, 196 a 197 o Ddeddf y Môr a Mynediad i’r Arfordir 2009 ac O.S. 1999/1820. Mewnosodwyd adran 4A gan adran 21 o Ddeddf Pysgodfeydd 1981 a’i diwygio gan adran 3 o Ddeddf Pysgod Môr (Cadwraeth) 1992, adran 6 o Ddeddf y Môr a Mynediad i’r Arfordir 2009 ac O.S. 1999/1820. Diwygiwyd adran 5 gan adran 22 o Ddeddf Pysgodfeydd 1981, adran 198 o Ddeddf y Môr a Mynediad i’r Arfordir 2009 a pharagraff 3 o Atodlen 15 iddi, paragraff 38 o Atodlen 13 i Ddeddf Llongau Masnach 1995, O.S. 1999/1820 ac O.S. 2010/760. Diwygiwyd adran 6 gan adran 23 o Ddeddf Pysgodfeydd 1981 ac O.S. 1999/1820. Diwygiwyd adran 8 gan O.S. 1999/1820.

[^f00007]: 1968 p.77; diwygiwyd adran 5 gan adran 4 o Ddeddf Terfynau Pysgodfeydd 1976, a pharagraff 3 o Atodlen 1 a pharagraff 17 o Atodlen 2 iddi, adran 24 o Ddeddf Pysgodfeydd 1981 ac O.S. 1999/1820.

[^f00008]: Diwygiwyd adran 2 gan O.S. 1999/1820 ac O.S. 2015/664.

[^f00009]: Diwygiwyd adran 30 gan adran 293 o Ddeddf y Môr a Mynediad i’r Arfordir 2009, O.S. 2011/1043 ac O.S. 1999/1820.

[^f00011]: O.S. 2006/1495.

[^f00012]: O.S. 2009/3391.

Editorial notes

[^c23601741]: 1981 c. 29 (“the 1981 Act”); section 30(2ZA) was inserted by section 293(3) of the Marine and Coastal Access Act 2009 (c. 23). See section 30(3) for the definition of “the Ministers”.