UK Offence Report

Methods of fishing: salmon

article 22(2) of The Scotland Act 1998 (River Tweed) Order 2006

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

2 Any person who fishes for or takes salmon in any waters other than inland waters except by—

a rod and line;

b net and coble; or

c bag net, fly net or other stake net, shall be guilty of an offence.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a person
Conduct
breaching the provision
Fault element
Strict liability
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

What would breach article 22(2)?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. On these words an offence is committed where a person fishes for or takes salmon in any waters other than inland waters except by— a rod and line; b net and coble; or c bag net, fly net or other stake net.
  2. Doing what the provision prohibits, or failing to do what it requires under the Scotland Act 1998 (River Tweed) Order 2006.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
£5,000
Maximum prison (summary)
Not determined

expressed as the statutory maximum (the prescribed sum): the same words mean £5,000 in England and Wales and £10,000 in Scotland.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

The Ministry of Justice records offences under this instrument against offence code 11607 — 11607 - Fishing salmon or freshwater fish in breach of The Scotland Act 1998 (River Tweed) Order 2006. That code may cover several provisions of the instrument, so a count against it is not a count of prosecutions under this provision alone.

No published per-offence figure was found for this provision. Offences created by statutory instrument very largely do not have their own code in the MoJ’s Outcomes by Offence data tool. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
14 November 2006
In force from
15 November 2006
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Order) — the explanatory note published with the instrument, © Crown copyright.

This Order applies to the Tweed district which includes the catchment of the River Tweed and the other rivers that run to the sea between, in the north a point on the coast at the boundary between the Scottish Borders and East Lothian and, in the south, a point on the coast west of Holy Island, and an adjacent area of sea. It consolidates, with some amendments, the existing salmon and freshwater fisheries legislation for the Tweed district. The Order makes provision in relation to the Tweed district by— a defining the Tweed district and Estuary limits of the RiverTweed; b providing for the establishment of the River Tweed Commission, with powers to administer salmon and freshwater fisheries in the district for the purposes of protection or improvement of the fisheries, preservation of salmon and freshwater fish, and stocking of the district with salmon or freshwater fish; c defining permissible methods of fishing for salmon and freshwater fish, and defining offences and penalties where there is non—compliance; d making provision for weekly and annual close times for fishing; e detailing offences relating to the sale, purchase and possession of salmon and trout; in relation to the disturbance or destruction of juvenile salmon and spawning beds, the balance between property rights in the bed of a river and conservation of juvenile salmon has been changed in favour of conservation, but provision is made for proprietors to obtain permission to undertake necessary works; f defining exemptions from certain offences or acts if done for scientific or other purposes; g enabling Scottish Ministers to make Orders in relation to the regulation of fisheries and for the conservation of salmon; h giving powers to water bailiffs and police constables to enforce the provisions of the Order; i providing for the making of protection orders, where appropriate, to make it an offence to fish for freshwater fish without legal right or written permission; j giving powers to wardens to enforce protection order provisions; k providing for the licensing and regulation of salmon dealers; l providing powers to the River Tweed Commission to prosecute in the courts in England and Wales; m making provision for the application of the Order to the Crown. This Order restricts the application of provisions in the enactments listed in Schedule4 to exclude the Tweed district, and makes consequential amendments. The Order replaces 19th, 20thand 21st Century legislation in respect of the Tweed district, which is repealed under Schedule4.

Read the full note and every offence in this instrument

What Parliament said

Mentions of this instrument in Hansard. Parliamentary material is reused under the Open Parliament Licence v3.0.

Other offences in the same instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.92.

Basis
the provision says a person is “guilty of an offence”
Confidence
0.92 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source