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Cite as: [2001] EWHC Admin 840

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HENRICK MESSEMAKER v. MAFF [2001] EWHC Admin 840 (6th November, 2001)

[2001] EWHC Admin 840
Case No: CO/1606/2001

IN THE SUPREME COURT OF JUSTICE
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
6 November 2001

B e f o r e :

THE RIGHT HONOURABLE LORD JUSTICE LAWS
and
THE HONOURABLE MR JUSTICE NEWMAN
____________________

HENRICK MESSEMAKER
Claiman
- and -

MINISTRY OF AGRICULTURE FISHERIES AND FOOD
Defendant
 ____________________

Michael Davey (instructed by Andrew M Jackson & Co for the Claimant)
Rupert Anderson (instructed by MAFF (Legal Dept) for the Defendant)
____________________

JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
____________________

Crown Copyright ©

    Mr Justice Newman:

  1. This is an appeal by way of case stated from the North Tyneside Magistrates Court against part of the sentence imposed for an offence of failing to comply with a Community control measure in relation to fishing.

  2. On l7 January 2001 the appellant pleaded guilty to the offence of failing to comply with a specified community provision, namely Article 6(1) of Council Regulation No. 2897/93, in that he failed to keep a logbook of his fishing operations in the prescribed manner. He was fined a total of £17,022 made up as follows:

    3. (1) a fine of £3000;

    (2) an additional fine of £14,022, being the value of the fish in respect of which the offence was committed.

  3. Between l2-16 January 2001 the appellant was the master of the Dutch fishing vessel “Anna Hendrika”. The vessel was owned by his mother. The figure of £14,022 was the agreed value of the fish for the days when the log was not completed. There is no appeal against the fine of £3000 but it is submitted that the magistrates did not have the power to impose an additional fine on the appellant calculated by reference to the value of the whole catch and or they erred in principle in calculating this part of the sentence.

    4. The Legislation

  4. Council Regulation (EEC) No. 2897/93 (“the EEC Regulation”), as amended by Council Regulation (EC) No. 2870/95 and succeeding Regulations, imposed on Member States the obligation to adopt appropriate measures to ensure compliance with the common fisheries policy. Article 6(1) is within Title ll, headed “Monitoring of Catches”, and provides:

    5. “The masters of Community fishing vessels fishing for a stock or group of stocks shall keep a logbook of their operations, indicating particularly the quantities of each species caught and kept on board, the date and location (ICES statistical rectangle) of such catches and the type of gear used.”

  5. Title VIII is headed, “Measures to be taken in the case of non-compliance with the rules in force” and includes Articles 31, 32 and 33.

    6. Article 31

    “1. Member States shall ensure that the appropriate measures be taken, including of administrative action or criminal proceedings in conformity with their national law, against the natural or legal persons responsible where common fisheries policy have not been respected, in particular following a monitoring or inspection carried out pursuant to this Regulation.

    2. The proceedings initiated pursuant to paragraph 1 shall be capable, in accordance with the relevant provisions of national law, of effectively depriving those responsible of the economic benefit of the infringements or of producing results proportionate to the seriousness of such infringements, effectively discouraging further offences of the same kind.

    2a. ..........

    3. The sanctions arising from the proceedings mentioned in paragraph 2 may include depending on the gravity of the offence:

    - fines,

    - seizure of prohibited fishing gear and catches,

    - sequestration of the vessel,

    - temporary immobilization of the vessel,

    - suspension of the licence,

    - withdrawal of the licence.

    4. The provisions of this Article shall not prevent the Member State of landing or transshipment from transferring prosecution of an infringement to the competent authorities of the Member State of registration with the agreement of the latter and on condition that the transfer is more likely to achieve the result referred to in paragraph 2. The Commission shall be notified of any such transfer by the Member State of landing or transshipment.

    Article 32

    1. Where an infringement of the provisions of this Regulation is discovered by the competent authorities of the Member State of landing or transshipment, those competent authorities shall take appropriate action in accordance with Article 31 against the master of the vessel involved or against any other person responsible for the infringement.

    2. If the Member state of landing or transshipment is not the flag Member State and its competent authorities do not undertake, in conformity with their national law, appropriate measures including the initiation of administrative action or criminal proceedings against the natural or legal persons responsible, or do not transfer prosecution in accordance with Article 31(4), the quantities illegally landed or transshipped may be set against the quota allocated to that former Member State.

    The quantities of fish to be set against that Member State’s quota shall be fixed in accordance with the procedure laid down in Article 36 after the Commission has consulted the two Member States concerned.

    If the Member State of landing or transshipment no longer has a corresponding quota at its disposal, Article 21(4) shall apply mutatis mutandis the quantities of fish illegally landed or transshipped being deemed to be equivalent to the amount of the prejudice suffered, as mentioned in that Article, by the Member State of registration.

    Article 33

    1. The competent authorities of Member States shall without delay and in compliance with their procedures under national law notify the flag Member State or the Member State of registration, of any infringement of the Community rules referred to in Article 1, indicating the name and the identification marks of the vessel involved, the names of the master and the owner, the circumstances of the infringement, any criminal or administrative proceedings or other measures taken and any definitive ruling relating to such infringement. Upon request, Member States shall notify the Commission of this information in specific cases.

    2. Following a transfer of prosecution pursuant to Article 31(4), the flag Member State or the Member State of registration shall take all appropriate measures as set out in Article 31.

    3. The flag Member State or the Member State of registration shall notify the Commission without delay of any measures taken in accordance with paragraph 2, along with the name and the external identification of the vessel concerned.”

  6. The measure adopted for the purpose of achieving the common fishery policies and providing for enforcement of the objectives of the EEC Regulation in the United Kingdom is the Sea Fishing (Enforcement of Community Control Measures) Order 2000 (S.I. 2000 No.51) (the Order). Article 3(1) provides:

    7. “3.(1) Where there is, in respect of -

    (a) any relevant British fishing boat wherever it may be;

    (b) any other fishing boat which is within relevant British Fishery Limits;

    (c) any entry into seas within relevant British Fishery Limits by any fishing boat; or

    (d) any fishery products, premises or vehicle in England or Northern Ireland,

    a contravention of, or failure to comply with a Community control measure specified in Column l of the Schedule the persons specified in the appropriate entry in Column 5 of the Schedule shall each be guilty of an offence.”

  7. Column 1 in the part material to the appeal provides:

    8. Column 1

    Column 2

    Column 3

    Column 4

    Column 5

     

     

     

     

     

    Community Provision

    Detailed Rules

    Subject Matter

    Maximum fine on summary conviction

    Persons Liable

    (b) Article 6

    Article l of and Annexes I,II,IIA,IV,V, VI and VII of

    Requirement to keep a logbook in computer readable form or on paper, for fishing boats of l0 metres or more, and submit it to the flag Member State, and the Member State of landing, if different, within 48 hours of landing.

    £50,000

    The master, the owner and the charterer (if any)

  8. Article 4 provides for the penalties:

    9. “4.(1) A person found guilty in England or Northern Ireland of an offence under article 3(1) of this Order, or under any equivalent provision in an order extending to any other part of the United Kingdom proceedings in respect of which were brought in England or Northern Ireland by virtue of Section 30(2A) of the Fisheries Act 1981, shall be liable -

    (a) on summary conviction to a fine not exceeding the amount specified in the appropriate entry in Column 4 of the Schedule;

    (b) on conviction on indictment to a fine.

    (2) A person found guilty in England or Northern Ireland of an offence under article 3(1) of this Order, or under any equivalent provision in an order extending to any other part of the United Kingdom proceedings in respect of which were brought in England or Northern Ireland by virtue of section 30(2A) of the Fisheries Act 1981, founded on a contravention of, or failure to comply with –

    (3)

    (a) Articles 19a.2, 20.1, 20a or 21c.2 of Regulation 2847/93 shall also be liable -

    (i) to the forfeiture of any net or other fishing gear in respect of which the offence was committed, or which was used in committing the offence, or which was used for catching any fish in respect of which the offence was committed; and

    (ii) to the forfeiture of any fish in respect of which the offence was committed, or, on summary conviction only, to a fine not exceeding the value of any fish in respect of which the offence was committed; or

    (b) Articles 6, 8.1, 9, 11, 12, 13 or 17.2, Articles l9b and l9c or Articles l9e, 20.2, 28c (in relation to the requirements in respect of logbooks and recording of catches on board) or 28d of Regulation 2847/93 shall also be liable to the forfeiture of any fish in respect of which the offence was committed, or to a fine not exceeding the value of any fish in respect of which the offence was committed.”

  9. Article 5 confers specific powers in connection with the recovery of fines. In particular, Article 5(1) provides:

    10. “5.(1) Where a fine is imposed by a magistrates’ court in England or Northern Ireland on the master, owner, charterer, person responsible for the vessel or any other person who is convicted by the court of a relevant offence or an offence under article 10 of this Order, the court may for the purposes of recovering the fine -

    (a) issue a warrant of distress against the boat involved in the commission of the offence and its gear and catch and any property of the person convicted for the purpose of levying the amount of the fine; or

    (b) order such boat and its gear and catch to be detained for a period not exceeding three months from the date of the conviction or until the fine is paid or the amount of the fine is levied in pursuance of any such warrant, whichever occurs first.”

  10. Article 10 provides:

    11. “Any person who -

    (a) fails without reasonable excuse to comply with any requirement imposed by a British sea-fishery officer under the powers conferred on him by virtue of article 6,7 or 8 of this Order;

    (b) without reasonable excuse prevents any other person from complying with any such requirement; or

    (c) obstructs any such officer who is exercising any of those powers,

    shall be guilty of an offence, and liable -

    (i) on summary conviction to a fine not exceeding the statutory maximum; or

    (ii) on conviction on indictment to a fine.”

  11. Article 11 provides:

    12. (1) Where any offence under article 3 of this Order committed by a body corporate is proved to have been committed with the consent or approval of, or to be attributable to any neglect on the part of, a director, manager, secretary or other similar officer of the body corporate, or a person purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of the offence and liable to be proceeded against and punished accordingly.

    (2) Where any offence under article 3 of this Order committed by a partnership is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner, he as well as the partnership shall be guilty of the offence and liable to be proceeded against and punished accordingly.

    (3) Where any offence under article 3 of this Order committed by an unincorporated association (other than a partnership) is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any officer of the association or any member of its governing body, he as well as the association shall be guilty of the offence and liable to be proceeded against and punished accordingly.

    The Magistrates’ Decision

  12. Although the Magistrates appear to have been referred to an earlier published Order, no point has been taken on that score. They considered that they had the power to impose a fine up to a maximum of £50,000 and to impose “ .... a fine not exceeding the value of any fish in respect of which the offence was committed” and concluded:

    13. “8. We considered the forfeiture of the catch but considered that to fine the defendant £3000 together with the cost of the fish, £14,022, was more proportionate to the offence committed.

    9. The fine of £3000 represents only 6% of the maximum possible, or put another way £1000 for each day the log was not completed.

    10. In our deliberations bearing in mind the aggravating and mitigating features we saw a financial penalty in the region of £20,000 as being appropriate.

    11. By placing the majority of this penalty on the value of the catch we felt it more clearly showed the proportionality of the sentence as it could be seen as directly linked to any possible gain.

    12. We took into account the earning of the defendant and his ability to pay the fine. We also took into account that the defendant was a servant of the owner and as such the owner could not be seen to benefit from the wrongdoing of his servant.

    13. In arriving at this decision we were aware that the crew may be affected but that the contracts under which they worked and the custom and practice within the fishing industry were not our concern as one could assume that the legislators would have taken this into consideration in the drafting of the regulations. The legislation clearly allows the court to fine the value of the catch.

    14. We also took into account that he was working on behalf of the owner who is his mother.

    15. We also considered that no one should benefit from the offence.

    16. We took into account the purpose of the legislation which is to preserve fish stocks in the waters around the United Kingdom.

    17. The objective of the sentence was to punish the defendant and deter others from committing such offences.”

    The Magistrates posed the following question of law for the court:

    “18. The question of law on which the opinion of the High Court is sought is whether, in the absence of established case law and precedent, we were right to add the additional penalty to the basic fine.”

    The Argument

  13. Counsel for the appellant, Mr Davey, submitted that the legislative purpose of the additional fine was to deprive any person found guilty of an offence of any economic benefit which that person had gained by virtue of the infringement. It was not to impose a fine on the guilty person before the court in an amount calculated with a view to punishing someone not before the court, and depriving that person of any benefit derived from the infringement. He submitted that, where only the master is prosecuted the scope of the power to impose an additional fine up to the value of the fish in respect of which the offence is committed, is circumscribed by:

    14. (1) the value of the master’s proprietary interest in the fish (if any); and or

    (2) the principle that the court should only impose a financial penalty on a defendant which reflects his culpability in the offence and which, upon the evidence, he has the means to pay.

    These conclusions, it was submitted, arose upon a proper interpretation of both the EEC Regulation and the Order. Particular reliance was placed on the terms of Article 31(2) of the EEC Regulation:

    “The proceedings initiated pursuant to paragraph 1 shall be capable, in accordance with the relevant provisions of national law, of effectively depriving those responsible of the economic benefit of the infringements or of producing results proportionate to the seriousness of such infringement, effectively discouraging further offences of the same kind.”

    As to the Order, it was submitted that the additional fine, being an alternative to forfeiture, the principles applicable to forfeiture and confiscation in other spheres of criminal activity (for example in connection with drugs and customs and excise offences) should apply. (See R v Porter (1990) 12 Cr App R (S))

  14. Mr Anderson, for the prosecution, submitted that there was no reason to give the EEC Regulation a narrow interpretation. Article 31(2) not only referred to depriving those responsible of benefit but also underlined the importance to be attached to the deterrent element in the measures to be adopted. Taken with the practical difficulties associated with the service of process on the owner or the charterer, a construction which precluded imposing a fine based on the value of the fish on the master of a vessel would mean that, where the master was salaried no additional fine could ever be imposed. He submitted the Order plainly authorised an additional fine without any such qualification or reservation and a reading down of the plain words of the Order was not justified. In a note, provided at the invitation of the court after closure of argument, Mr Anderson drew attention to the delay inherent in the service of process overseas under Section 2 of the Criminal Justice (International Co-operation) Act 1990, which could lead to delays of up to six months or more. Mr Davey responded to the note, drawing attention to the enforcement measures laid down in the Order. He submitted that the existence of such measures was not a sound reason for “supposing that the Order” permitted a fine on the master beyond his financial interest in the fish.

    15. Conclusions

  15. Approaching the issue by the application of the principles established in connection with the confiscation and forfeiture of property derived from criminal activity, the argument for the appellant has some force. Further, it is well recognised that when fining a defendant a court should always have regard to the defendant’s means to pay the penalty and should disregard the opportunity which an interested third party may have to indemnify him but that is not to say that Parliament is unable to legislate so as to make the interests of others a relevant factor in sentencing. A court should not, unless the legislation permits it, make orders adversely affecting the rights of others where the persons affected have not been heard. Statutory provisions enabling a court to order the return of a benefit obtained through criminal activity recognise the principle that a benefit must be proved to have been obtained and as between co-defendants a court must assess their respective benefits. (See R v Porter 1990 l WLR 1260; R v Cadman Smith, CA Transcript Friday l6 June 2001) That said, the parallels cannot be pressed too far and must yield to the language of the provisions and the scheme of the legislation. Ultimately the answer depends upon the correct interpretation of the Order.

  16. The objectives of the common fisheries policy of the European Community involve balancing the biological and environmental need to conserve fish stocks and to protect the marine eco-system, with the economic need to exploit fisheries resources on a sustainable basis and to protect the interests of both fishermen and consumers of fish. The magistrates were correct to pay express regard to this factor. These objectives comprise part of a specific, complex, social and economic policy and are not concerned with regulating criminal conduct. The conduct in question is lawful but requires regulating. A unified monitoring and enforcement system has been established by the EEC Regulation for the whole common fisheries policy. It is that system which has been implemented in the United Kingdom through the Order. The requirement to keep a log book indicating the quantities of each fish species caught and the quantities on board, the date and location of catches and the type of fishing gear used are manifestly a significant aspect of the monitoring required to ensure the effective implementation of the policy objective. It is beyond argument that Article 6(1) places the obligation upon the masters of fishing vessels.

  17. The United Kingdom has the responsibility for taking administrative and or criminal action in connection with breaches of the community fishing law, although the type and level of penalties for such breaches is a matter for the United Kingdom, it is required to take action against those breaching the community fisheries policy and to provide effective penalties against those responsible. In common with many of the measures which have to be implemented, Article 6 of the EEC Regulation places the responsibility for keeping a log book on the masters of the fishing vessels. It is not contemplated that the function can be fulfilled by the owner or charterer. The EEC Regulation does not specify that the owner or charterer must be proceeded against but contemplates such action being taken because: (1) it is obvious the owner or charterer are likely to be the persons most likely to have benefited, and (2) it refers to “persons responsible”. The owner and charterer are made liable by the Order (see Schedule, Column 5); in effect being made responsible for the actions of the master. Article 3(1) of the Order provides that upon proof of a contravention or failure to comply that certain persons shall each be guilty of an offence.

  18. It follows that the intent of Article 31 of the EEC Regulation (Measures to be taken in the case of non-compliance with the rules in force) is not to penalise the pursuit of an activity which is criminal in character (for example, drug trafficking) but to underpin regulatory measures of control by an effective band of sanctions, which can be both administrative and criminal in character. Unless criminal proceedings are capable of depriving those responsible of the economic benefit of the infringements or of producing results proportionate to the seriousness of the infringements, effectively discouraging further offences of the same kind, the United Kingdom’s obligations will not be met. If a master is brought before the court and a contravention or failure to comply is established, all the facts giving rise to the liability of the master or charterer will have been established.

  19. The Order implements the requisite aim of the suggested criminal proceedings by providing for a fine and an additional fine. Article 32(1) of the EEC Regulations states that the “ ... competent authorities shall take appropriate action in accordance with Article 31 against the master of the vessel involved or against any other person responsible for the infringement”. It is obvious that for practical purposes a master (not being the owner or charterer) will, in the great majority of cases (if not invariably), be the person responsible within the jurisdiction and arrested, and the owner or charterer will be subject to service of process. Article 32(1) identifies the master as the person against whom proceedings shall be taken. In many instances the owners are likely to be “legal” and not natural persons. If Mr Davey’s submission is correct, the aim of depriving those responsible of the economic benefit of the infringement will not be achieved unless the master either:

    20. (1) has an interest in the whole catch, or

    (2) the owner or charterer are prosecuted.

  20. No basis for the existence of these significant limitations upon achieving the objectives of the fisheries policies can be spelt out of Article 31(2) and, not surprisingly, they are not reflected in the Order. Similarly, Article 32 is framed so as to lead to the conclusion that the suggested limitations were not intended. In my judgment, taken together, Articles 31 and 32 impose obligations upon a Member State to take proceedings capable of achieving the aim of depriving “those responsible” of economic benefit. It would be odd if a master, who is expressly contemplated as being made subject of proceedings, was someone in respect of whom the aim could only be achieved in the particular circumstances suggested by Mr Davey.

  21. In my judgment the terms of the Order, and in particular the power conferred by Article 5(1) for the recovery of fines, puts the falsity of the submission beyond doubt. If only the master is fined a warrant of distress can be issued against the boat. It would be illogical to conclude that where only the master was before the court, there is no power to fine a master according to the value of the fish if he was salaried and has no interest in the catch, and to enable such a power to be exercised the owner would have to be before the court, but having imposed a fine on the master alone, the court has the power for the purpose of recovering the fine, of issuing a warrant of distress against the boat, its gear and the catch. In my judgment the presence of the owner before the court cannot be taken to be a pre-condition of action being taken in connection with the owner’s property. Indeed, the inclusion in Article 5(1)(a) of the power to issue a warrant of distress against “the boat involved in the commission of the offence and its gear and catch and any property of the person convicted for the purpose of levying the amount of the fine”, demonstrates that the Order must be taken to have recognised a distinction between the master’s property and the owner’s property and to have contemplated orders being made against the Owner’s interest even though not before the court. Article 5(l)(b) is to the same point. If the master is fined, the boat, the gear and catch can be detained for up to three months from conviction or until the fine is paid.

  22. Having regard to the above I am entirely satisfied that the statutory regime expressly contemplates the objectives of the fisheries policy being achieved in proceedings taken against the master alone. Further, I am satisfied that because the legislation renders the owner (or charterer) liable upon proof of a contravention or failure to comply by the master it is rational for the court to pay regard to that factor and to impose an additional fine calculated by reference to the owner’s interest in the catch.

  23. For the above reasons I would answer the question posed: yes, and would dismiss the appeal. The Magistrates were satisfied that the fine imposed by reference to the whole catch and the interest of the owner did not result in a fine which was beyond the appellant’s ability to pay.

    24. Lord Justice Laws:

  24. I agree.

© 2001 Crown Copyright

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