2019 No. 363 (W. 86)
The Sea Fishing (Penalty Notices) (Wales) Order 2019
Made
Laid before the National Assembly for Wales
Coming into force
The functions of the Ministers under section 30 of the 1981 Act, so far as exercisable in relation to Wales, were transferred to the National Assembly for Wales and then transferred from that body to the Welsh Ministers: see article 2(a) of and Schedule 1 to the National Assembly for Wales (Transfer of Functions) Order (S.I. 1999/672) and paragraph 30 of Schedule 11 to the Government of Wales Act 2006 (c. 32). The functions of the Ministers under section 30 of the 1981 Act, so far as exercisable in relation to the Welsh zone, were transferred to the Welsh Ministers by article 4(1)(e) of the Welsh Zone (Boundaries and Transfer of Functions) Order 2010 (S.I. 2010/760). Those functions were further transferred, on a concurrent basis, in relation to Welsh fishing boats beyond the seaward limit of the Welsh zone by section 59A of and paragraph 2(1) of Schedule 3A to the Government of Wales Act 2006.
Title, commencement and applicationI11
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, the Welsh zone and Welsh fishing boats wherever they may be.
InterpretationI22
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.
Issue of penalty noticeI33
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 noticeI44
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 offenceI55
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 penaltyI66
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 penaltiesI77
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 noticeI88
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 noticesI99
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 KingdomI1010
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 provisionI1111
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 F4; 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.
RevocationI1212
The Sea Fishing (Enforcement of Community Measures) (Penalty Notices) Order 2008 is revoked.
SCHEDULEOffences relating to sea fishing
I131
In the Sea Fisheries (Shellfish) Act 1967 F5, 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).
I142
In the Sea Fish (Conservation) Act 1967 F6, 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
section 4 (licensing of fishing boats);
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).
I153
An offence under section 5 of the Sea Fisheries Act 1968 F7 (regulation of conduct of fishing operations).
I164
An offence under section 2 of the Fishery Limits Act 1976 F8 (access to British fisheries).
I175
An offence under section 30 of the Fisheries Act 1981 F9 (enforcement of Community rules).
I186
An offence under section 190 of the Marine and Coastal Access Act 2009 F10 (offences).
I197
An offence under regulations 3 to 11 of the Registration of Fish Buyers and Sellers and Designation of Fish Auction Sites (Wales) Regulations 2006 F11.
I208
An offence under article 9 of the Sea Fishing (Illegal, Unreported and Unregulated Fishing) Order 2009 F12.
I219
In this Schedule, reference to a section includes subordinate legislation made under that section.
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”.