Bossom & Anor, R v [2006] EWCA Crim 1489

Case No 200500760[2006] EWCA Crim 1489
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 29 th June 2006
Before
LORD JUSTICE GAGEMR JUSTICE FORBESMRS JUSTICE COX
Between
RCrownBossom and JoyDefendant
(Transcript of the Handed Down Judgment ofSmith Bernal WordWave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Nicholas Paines QC and Philip Moser for Graeme BossomNicholas Paines QC and Ian Lawrie for Paul JoyRhodri Thompson QC and Martin Edmunds for Crown
JudgmentLord Justice Gage :Introduction
[1]On 14 January 2005 at Lewes Crown Court the appellants, Paul Joy and Graeme Bossom, pleaded guilty to breaching a condition of their fishing licences contrary to s.4(6) of the Sea Fish (Conservation) Act 1967 (as amended) (the 1967 Act). On 25 January 2005 Joy was fined £7496 and Bossom £6574. Each appellant was given a year to pay with three months’ imprisonment in default. They now appeal against conviction by leave of the full court. The focus of this appeal is a challenge to a ruling by His Honour Judge Coltart rejecting a submission by both appellants that the condition of their separate licences, which it is alleged they breached, was ultra vires European Community law. Following his ruling the appellants changed their pleas of not guilty entered on arraignment to pleas of guilty. The single ground of appeal is that the judge’s ruling was wrong.[2]At the preliminary hearing before His Honour Judge Coltart the prosecution relied on written statements of witnesses and called Mr John Winterton, a senior executive officer in the Department for Environment, Food and Rural Affairs (DEFRA). The appellants called no evidence. The argument deployed by the appellants before the judge was that the fishing licence conditions imposed by DEFRA were unlawful.

The agreed facts

[3]It is a criminal offence contrary to s.4 (6) of the Sea Fish (Conservation) Act 1967 (as amended) on the part of the master, owner and any charterer of any vessel if a licence condition of the fishing licence for the vessel is broken.[4]Mr Joy and Mr Bossom, as we shall refer to the appellants throughout, were at all relevant times commercial fishermen of many years experience. Each owned and operated a shore launched fishing vessel from Hastings beach which fell within the under 10 metre fleet. Mr Joy’s vessel, Sandra RX 83, has an overall length of 8.73m. Mr Bossom’s vessel, Jackelly RX 52, has an overall length of 9.2m. Mr Joy was the secretary of the Hastings Fisherman’s Protection Society, of which Mr Bossom was also a member.[5]DEFRA granted each man a fishing licence for their vessel containing conditions. Variations of the conditions were issued from time to time during the 2-year period of the licence. The relevant variations for the purposes of this appeal were contained in standard form letters posted on 23 January 2003 and came into effect on 28 January 2003.[6]The English fishing fleet is subject to catch quotas imposed by European Community regulations. We shall deal with the quota system in more detail later in this judgment. Between the years 1998 to 2003 there was a substantial reduction in the amount of the United Kingdom’s quota for Channel cod for the sea areas from Milford Haven/Fishguard to Folkestone. In that period the quota was reduced from 1,660 tonnes to 537 tonnes. The overall quota is sub-divided between different categories of the fishing fleet. The under 10 metre fleet allocated catch in 2002 was 268 tonnes which in 2003 was reduced to 132 tonnes.[7]Before July 2002 the under 10 metre fleet had not been made subject to individual monthly catch restrictions in respect of the Channel cod fishery. Instead when the overall allocated quota for the under 10 metre fleet had been exceeded the fisheries were closed. We are told that this happened on one occasion in 1998.[8]In the first few months of 2002 the volume of catches of cod by the United Kingdom Channel cod fishery was unexpectedly high. By May 2002 a substantial proportion of the United Kingdom’s Total Allowable Catches (TAC) had been taken up. Therefore it was decided by DEFRA that from July 2002 licences for the Channel fishery should contain conditions which restricted the amount of certain species, including cod that could be “caught and retained on board, landed or transhipped per calendar month”.[9]The unchallenged evidence before the judge showed that before monthly quotas for individual vessels in the under 10 metre fleet were imposed there was a consultation process in which the competing interests of the Eastern and the Western Channel fishermen were addressed. The evidence demonstrated that the consultation process involved the National Federation of Fishermen’s Organisations and Channel Fishing Interests. The appellant Paul Joy, representing the Hastings Fishermen’s Protection Society, was involved to some extent in this process. As a result it was decided to impose individual monthly quotas in respect of each under 10 metre boat in the under 10 metre fleet. This was effected by attaching conditions to the fishing licence issued in respect of each vessel pursuant to the 1967 Act. We shall deal with the relevant statutory provisions later in this judgment.[10]By a variation of those licences dated 23 January 2003 coming into effect on 28 January 2003 a monthly quota for cod per vessel was introduced limiting catches to variable monthly figures. By this variation the limit for October 2003 for the two vessels owned respectively by Mr Joy and Mr Bossom was set at 150kg.[11]In late October 2003 fisheries inspectors at the quay-side at Hastings in the course of conducting their usual inspection duties noticed high levels of landings of cod by the two vessels, Sandra RX 83 and Jackelly RX 52. As a result an inquiry was instituted. The inquiry disclosed that in the month of October 2003 both Mr Joy and Mr Bossom landed and sold through the Hastings Fish Auction amounts of cod significantly in excess of the 150kg limit. In respect of Mr Joy the excess was 969kg; and in respect of Mr Bossom the excess was 704kg.[12]On 19 November 2003 Mr Joy was interviewed. He maintained that he had only read the first page of his licence and was unaware of the variations and therefore unaware of the existence of individual monthly catch restrictions. Mr Bossom was also interviewed. He said that he had not read the conditions of his fishing licence and did not keep any track of fish which he had caught. He said that he was unaware of the individual monthly catch restrictions.[13]The trial judge found that both men knew exactly what they were doing and were fully aware that there were mandatory limits on their monthly fishing catches. This finding is not challenged in this appeal. Further it is not in issue that on these facts Mr Joy and Mr Bossom had exceeded the limits in respect of cod provided by a condition of their fishing licences.

The domestic legislation

[14]The 1967 Act provides for regulating the commercial use of, fishing for, and landing of, sea fish, and for authorising measures for the increase of improvement of marine resources. Section 4 provides for the licensing of fishing boats.

(a) it is provided that:

“(1) The Ministers may by order provide─ (a) that in any specified area within [relevant] British fishery limits fishing by fishing boats… is prohibited unless authorised by a licence granted by one of the Ministers S.4 (5) (c) provides that a licence under s.4 may confer limited authority by reference to, in particular, “the descriptions and quantities of fish which may be taken”
. It is provided in s.4 (6) that:
“A licence under this section may authorise fishing either unconditionally or subject to such conditions as appear to the Minister granting the licence to be necessary or expedient for the regulation of sea fishing … and in particular a licence may contain conditions: (a) … (b) … (c) … And if a licence condition is broken the master, the owner and the charterer (if any) of the vessel named in the licence are each guilty of an offence under this subsection.”
Finally s.4 (11) provides that Ministers may make arrangements for any of their licensing powers to be exercised by other persons on their behalf. (a) that in any specified area within [relevant] British fishery limits fishing by fishing boats… is prohibited unless authorised by a licence granted by one of the Ministers “A licence under this section may authorise fishing either unconditionally or subject to such conditions as appear to the Minister granting the licence to be necessary or expedient for the regulation of sea fishing … and in particular a licence may contain conditions: (a) … (b) … (c) … And if a licence condition is broken the master, the owner and the charterer (if any) of the vessel named in the licence are each guilty of an offence under this subsection.”[15]We should also refer to s.5 (1) which provides that Ministers may by order prohibit in any specified area all fishing for sea fish without limitation of time.[16]The effect of these provisions is that under domestic law the 1967 Act provided for the variation of the conditions which came into effect on 28 January 2003 to be attached to the fishing licences of vessels in the under 10 metre fleet.

The Appeal

[17]The judge was asked to rule that the relevant licence condition was ultra vires on the basis of what now forms the four grounds of appeal set out below. As we have said he heard evidence given by Mr. Winterton and read written statements of witnesses. In view of the fact that the issues on this appeal are the same as before the judge, albeit in oral argument the appeal is put on a narrower basis, we do not need to recite the judge’s reasons for ruling as he did. It will suffice for us to say that the judge’s reasons are succinctly set out in the transcript of his ruling which is before this court. He ruled against the appellants on all four issues[18]By their perfected grounds of appeal, dated 30March 2005, the Appellants contend that their convictions are unsafe on the basis that DEFRA’s decision to impose individual monthly catch limits for under 10 metre vessels as part of their licence conditions was ultra vires, unlawful and void, and that the trial judge erred in finding to the contrary. The following grounds were relied upon in support of that proposition:(i) The decision to impose individual monthly catch quotas for under 10 metre vessels was incompatible with supreme rules of EU law governing the Common Fisheries Policy, which are determinative of DEFRA’s powers in this field. The contested licence provision is contrary to the distinction, in relation to monitoring and enforcement measures, between under 10 and over 10 metre vessels in Council Regulation (EEC) 2847/93 and Council Regulation (EC) 2341/2002 which, for vessels under 10 metres, permit neither individual quotas nor any requirement to keep log books or to make landing declarations. The regime provides instead for the monitoring of under 10 metre vessels by means of a sampling plan.(ii) The decision to impose individual quotas in the present cases infringed the fundamental EU principles of proportionality and non-discrimination.(iii) The licence provision regarding the maximum amount of cod “that may be caught and retained on board, landed or trans-shipped per calendar month” lacked the requisite legal certainty. It was impossible or, at least, impractical to weigh the cod on board so that the licence provision would be breached and the crime committed before either Appellant was or could reasonably have become aware of it.(iv) Under domestic, administrative law principles the decision was “Wednesbury unreasonable” as an arbitrary or capricious exercise of discretion.[19]In his oral submissions on the Appellants’ behalf, however, Mr. Paines QC indicated that he was no longer pursuing the domestic law challenge in ground (iv). Further, he did not pursue the argument set out in the written grounds that the relevant EU provisions are to be interpreted in the light of Article 1 of Protocol 1 to the European Convention on Human Rights and the right to run a business without undue interference from the state. His challenge to these convictions before us was based squarely on the alleged incompatibility of the monthly catch limits with EC law by the imposition on these appellants, de facto, of onerous log-keeping and landing declaration requirements, from which under 10 metre vessels are exempt, and thereby the alleged infringement by DEFRA of the fundamental EU principle of proportionality.[20]Mr. Thompson QC accepts that DEFRA is required to comply with general principles of Community law in the discharge of the United Kingdom’s obligations under the Common Fisheries Policy of the European Community. He accepts also that the catch limits and the licence restrictions would be ultra vires if they were incompatible with Community law; and that the appellants are entitled to rely on a challenge to the validity of the licence restrictions as a defence to the criminal charges laid, the burden of establishing invalidity on the balance of probabilities being upon them (Boddington v. BritishTransport Police [1999] 2 AC 143).[21]He contends, however, that there is simply no basis for the contention that the catch limits are ultra vires as incompatible with EC law because, essentially:(1) The imposition of the monthly catch limits in these cases does not, either expressly or impliedly, require vessels of under 10 metres in length to keep log books or to make landing declarations, and certainly does not require them to complete documents of the kind required by Council Regulation 2847/93, from which they are exempt;(2) the appellants could readily have avoided infringing their licences had they wished to do so; and(3) the licence restriction is perfectly proportionate, non-discriminatory and clear and does not infringe any general principle of EC law.

The Relevant Community Framework

[22]The following matters are common ground and we therefore summarise the main points. Pursuant to the Common Fisheries Policy the EU determines the “TAC” for each relevant species of fish, from which it allocates to the United Kingdom an annual quota for relevant stock, including cod. For the year 2003 this was set out in Council Regulation 2341/2002. The UK fleet is not permitted to retain on board and land cod in excess of that quota, and measures are therefore necessary to ensure that the quota is not exceeded. In the event of breach the UK would suffer a reduction in the quota for the following year, pursuant to Article 23 (4) of the Common Fisheries Policy Regulation (EC) 2371/2002. Proceedings for infringement could also be brought against the UK by the Commission under Article 226 of the EC Treaty.[23]All catches of a relevant stock, including cod, are required by Article 21 of Council Regulation 2847/1993 to be charged against the UK’s quota. There is no exemption for the catch by the under 10 metre fleet, which has to be charged against the UK’s quota in just the same way as the catch of larger vessels. It follows, therefore, and the appellants do not dispute it, that the catch of the under 10 metre fleet must be restricted by some means.[24]Pursuant to Article 23 of Regulation 2371/2002 the UK, as a Member State, has the responsibility to, “… ensure effective control, inspection and enforcement of the rules of the Common Fisheries Policy.” and for adopting the measures to do so. Article 24 sets out various measures that the Government is obliged to take to promote enforcement of the rules, including the legal pursuit of infringements and sanctions in accordance with Article 25. Article 25 describes the criminal proceedings and the penalties against persons responsible where the rules have not been respected. It emphasises that such proceedings should be capable; “… of effectively depriving those responsible of the economic benefit of the infringements and of producing results proportionate to the seriousness of such infringements, effectively discouraging further offences of the same kind.”

The UK Cod Quota Allocation

[25]There is no EU provision prescribing any method of allocation to be adopted. Administration of the quota is therefore an area over which the Member State has a discretion, so long as that discretion is exercised in accordance with EC law. The UK’s cod quota is allocated amongst the following three groups: 1) The “Producer Organisations” of owners of mainly over 10 metre vessels. Each organisation is allocated a proportion of the quota and then decides how to distribute it amongst the members. 2) The “Non-Sector”, that is owners of over 10 metre vessels who are not members of any producer organisation. Monthly catch restrictions are set by way of licence conditions, having regard to the available proportion of the quota and the level of recorded landings. 3) The under 10 metre fleet.[26]The UK’s quota for Channel cod has steadily reduced over the years which, as Mr. Thompson observed, places great pressure on the industry and on DEFRA to address the diverse needs of the fishing industry. The allocations among these three groups are based principally on the fishing activity of their members during a historic reference period. The under 10 metre fleet benefit from a minimum percentage allocation, currently 25.7 % of the UK’s quota for Channel cod, as a measure of support for the smaller vessels. Thus, subject to the possibility of transfer between the groups, the proportion of the cod quota allocated to the under 10 metre fleet is a finite amount. The Government must therefore take steps to ensure that that fleet does not retain on board and land cod in excess of the quota allocated to it.[27]Against the background of diminishing overall cod quotas the evidence adduced below was that DEFRA has a choice between two basic methods of limiting the under 10 metre fleet to the proportion of the cod quota allocated to it. Since there are differing views and competing interests among the fishermen affected, DEFRA carry out consultation before deciding on the method to be used for any particular year, depending on a number of variables. The two methods are; 1) Keeping tally of the catches over the year and, as necessary, closing the fishery to the under 10 metre fleet pursuant to section 5 of the 1967 Act when the limit is reached; or 2) Imposing individual catch restrictions by way of licence conditions on vessels, under section 4 of the Act, in order to allow a fair distribution of the quota proportion allocated amongst the vessels in the under 10 metre fleet, even though its effect may be to require fishermen to exercise restraint during much of the season.[28]The first method had proved, historically, to be very unpopular. Cod catches vary seasonally for different parts of the South Coast. Thus vessels fishing off the Western Channel coast, where cod is more common in the earlier part of the year, could fish without restriction until the overall limit was reached, whereas the vessels fishing in the Eastern Channel, where cod is more common later on in the year, would find the fisheries closed to them just as the catches were becoming stronger. Further, if the fishery was closed only for cod, it meant that all cod caught accidentally after a certain date, during fishing for other species, would have to be discarded. As we have already indicated it is the second method which was adopted by DEFRA from June 2002 and which is the subject of challenge by these Appellants.

The Issues in this Appeal

[29]Mr. Paines’ first submission is that, under Regulation 2371/2002, control and enforcement measures are clearly an important aspect of EC policy on quotas. If, however, the under 10 metre vessels are exempt under EC law from the record keeping obligations which are necessary for such control and enforcement measures, then individual catch limits which require compliance with such obligations cannot lawfully be imposed upon them. In the present case such limits were, in effect, unlawfully grafted on to the sampling process as part of DEFRA’s monitoring methods for the under 10 metre vessels.[30]He relies for this submission on the provisions of Council Regulation (EEC) 2847/93, as amended, establishing a control system applicable to the Common Fisheries Policy. The Preamble to this Regulation states, so far as is relevant, “Whereas the management of fisheries by the fixing of TACs requires detailed knowledge of the composition of catches, such knowledge being equally necessary for the other procedures provided for in Regulation (EEC) No 3760/92; whereas this requires the keeping of a logbook by each master of a fishing vessel; …. Whereas it is essential to clarify and confirm at the time of landing the information contained in the logbooks; whereas, to this end, it is necessary that those involved in the landing and marketing of catches should declare the quantities landed, transhipped, offered for sale or purchased; Whereas, in order to provide exemptions from the obligation to keep a logbook or complete a landing declaration by small fishing vessels for which such an obligation would constitute a disproportionate burden in relation to their fishing capacity, it is necessary for each Member State to monitor the activities of such vessels by the implementation of a sampling plan;”… Articles 6 and 8 of this Regulation, dealing with the monitoring of catches, provide, so far as is relevant, as follows:
“Article 6 1. 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. … 3. The masters of Community fishing vessels shall enter in their logbook the quantities caught at sea, the date and location of these catches and the species referred to in paragraph 2. The quantities discarded at sea may be recorded for evaluation purposes. 4. Masters of Community fishing vessels shall be exempt from the requirements of paragraphs 1 and 3 if the overall length of the vessels is less than 10 metres. 5. The Council may decide by a qualified majority, on a proposal from the Commission, exemptions other than the one mentioned in paragraph 4. 6. Each Member State shall carry out, on the basis of sampling, monitoring of the activities of fishing vessels which are exempt from the requirements specified by paragraphs 4 and 5 in order to ensure respect by these vessels of the Community rules in force. To this end, each Member State shall establish a sampling plan and transmit it to the Commission. The results of monitoring executed shall be communicated regularly to the Commission.” “Article 8 1. The master of each Community fishing vessel having an overall length equal to, or more than, 10 metres, or his representative, shall after each trip and within 48 hours of landing submit a declaration to the competent authorities of the Member State where the landing takes place. The master shall be responsible for the accuracy of the declaration, which shall indicate, as a minimum, the quantities landed of each species stipulated in Article 6(2) and the area where they were caught. 2. The Council may decide, acting by a qualified majority on a proposal from the Commission, to extend the obligation set out in paragraph 1 to vessels having on overall length of less than 10 metres. The Council may also decide, acting by a qualified majority on a proposal from the Commission, exemptions from the obligation set out in paragraph 1 for certain categories of vessels having an overall length equal to, or more than, 10 metres and pursuing specific fishing activities. 3. Each Member State shall carry out, on the basis of sampling, monitoring of the activities of fishing vessels which are exempt from the requirements specified by paragraph 1 in order to ensure respect by these vessels of the Community rules in force. To this end, each Member State shall establish a sampling plan and transmit it to the Commission. The results of monitoring executed shall be communicated regularly to the Commission.”
[31]Mr. Paines submits that these provisions indicate both the importance of log books and the essential role played by landing declarations in relation to the control and monitoring measures established. From these onerous requirements the under 10 metre vessels are exempt, on the ground that they would impose a disproportionate burden, having regard to the limited fishing capacity of such vessels.[32]By Article 35 (1) Member States are required, each year, to:
“Transmit to the Commission a report on the application of this Regulation during the previous calendar year”
Article 38 provides:
“Article 38 This Regulation shall apply without prejudice to any national control measures which go beyond its minimum requirements, provided that they comply with Community law and are in conformity with the Common Fisheries Policy. The national measures referred to in the first subparagraph shall be communicated to the Commission in accordance with Article 2 (2) of Council Regulation (EEC) No. 101/76 of 19 January 1976 laying down a common structural policy for the fishing industry.”
This Regulation shall apply without prejudice to any national control measures which go beyond its minimum requirements, provided that they comply with Community law and are in conformity with the Common Fisheries Policy. The national measures referred to in the first subparagraph shall be communicated to the Commission in accordance with Article 2 (2) of Council Regulation (EEC) No. 101/76 of 19 January 1976 laying down a common structural policy for the fishing industry.”[33]Thus Mr. Paines submits that the UK Government can only go beyond the requirements of this legislation if the national measures adopted comply with EC law and are communicated to the Commission. In the present case the individual catch limits imposed were not communicated to the Commission. Further, since they require the Appellants, de facto, to keep records of a nature which the Regulation states expressly would be disproportionate to expect of them and from which they are exempt, the catch limits are incompatible with EC law.[34]In support of his second submission that the catch limits also infringed the EU principle of proportionality Mr. Paines relies essentially on two factors, namely the disproportionately burdensome requirement for these Appellants of keeping a log book and, secondly, what he describes as a wholly unworkable system of enforcement. In relation to the first of these he relies, essentially, on his previous submission that DEFRA cannot lawfully introduce catch limits for vessels which are expressly exempt from the disproportionate burden of maintaining the log books regarded as essential for monitoring the compliance by fishermen with such limits.[35]In relation to the second factor he submits that DEFRA’s own evidence shows that this form of licence restriction cannot be properly monitored and cannot be enforced at all. He relies in this respect on a memo from Barry Edwards at DEFRA dated 23 May 2002, in which he acknowledged that:
“…it will be difficult for the Inspectorate to monitor comprehensively the operation of the 200 kg limit in the absence of catch returns for individual vessels. I also recognise that the Inspectorate is hard pressed on other fronts. Thus I am not looking to the Inspectorate to increase the resource that it devotes to monitoring the activities of the under 10 metre fleet.”
He relies also on a witness statement from Angus Radford dated 16 December 2004 in which he stated, given that there is no requirement for under 10 metre vessels to complete a log book or other statutory return, that:
“This means that we are only really enforcing a quantitative restriction if the monthly allocation is exceeded on a single landing, when it could (as in these cases) be monitored by the fishery officers……In reality we do not inspect the fish at the market every day since our officers are covering an area from north Kent to West Sussex and are working away from Hastings on a frequent basis……The only way to monitor what an individual boat lands is to observe every landing and follow it to the market. This was not practical given the resources available to ‘police’ the coast from Folkestone to Poole and carry out our other non-enforcement related duties. I would have considered it over zealous enforcement to do so, in any event.”
[36]It is, Mr. Paines submits, irrational and therefore disproportionate to impose as a licence restriction monthly catch limits which DEFRA are then wholly incapable of monitoring and enforcing. In such circumstances it is unfair to expect an individual fisherman to comply with a requirement which cannot be enforced against his rivals. The only step available to DEFRA, if they wish to impose such restrictions, is to seek to obtain the necessary enforcement powers from the Commission. They cannot unilaterally impose a wholly unsuitable restriction, incapable of being enforced, in circumstances where they have effectively abstained from providing for themselves the ability to apprehend offenders because they do not have the necessary resources to enable them to do so. Such measures, it is said, offend the fundamental requirement of proportionality.[37]In our judgment, however, the flaw in the appellants’ case on appeal lies in the factual assumption which underpins all these submissions. Whilst it is correct that the appellants are exempt from the detailed record keeping and reporting obligations required of the over 10 metre vessels under Council Regulation 2847, it is simply not the case, in our view, that the imposition of monthly catch limits as a condition of their licences imposed such obligations upon them de facto, as claimed, for the purposes of control and enforcement.[38]As the judge observed there was here no legal requirement to maintain a log book or complete a landing declaration as a condition of the fishing licence; and no administrative requirement to do so as a result of any instructions from DEFRA. Nor was there any practical requirement, for enforcement purposes, for the appellants to keep a log book at all, rather than, as Mr. Thompson expressed it, a “rough and ready record” of the catches being made throughout each month, in order to enable the appellants to keep a tally of their catches and to comply with the relevant monthly limits. This, in our view, does not impose upon the appellants a de facto obligation to maintain records from which they are expressly exempted under Regulation 2847.[39]The requirements for vessels of over 10 metres are set out in general terms in Regulation 2847, Articles 6 and 8, with further details provided in Commission Regulation 2807/83. Thus, an EU log sheet must be kept in the form prescribed by Annex I of Regulation 2807 and must contain the information required by Annex IV, including dates and times of departure, return and landing; details of gear and mesh size; details, for each 24 hours, of the number of fishing operations and locations and of all species of fish caught; and details of any trans-shipment of fish between vessels. This log sheet must be submitted to DEFRA within 48 hours of landing, together with a landing declaration which itself must comply with the requirements of Regulation 2807 Annex I or III and IV. For each species the landing declaration must show the actual weight and the presentation (for example ‘GUT’ for gutted). It is a criminal offence for the master and owner of an over 10 metre vessel to fail to comply with these requirements.[40]The exemption from these obligations, unsurprising in the circumstances, for under 10 metre vessels is an exemption from these strict, record-keeping requirements of EC law. Such an exemption does not however prohibit other measures of control adopted by the Member State for these smaller vessels, so long as those measures comply with general, EU principles of proportionality, non-discrimination and legal certainty. Nor does the exemption bestow a right upon the owners of the under 10 metre vessels to fish entirely without regard to the amount of their catch.[41]Whilst DEFRA accepts that small boat fishermen would not weigh their fish at sea, it is the case, and is not disputed, that experienced commercial fishermen, which these appellants are, will almost invariably land fish, including cod, in standard sized boxes and will be very familiar with the weight of each species that such boxes would contain. Further, the appellants sold their fish to merchants, generating records then supplied to them, which showed the species of fish and weight for each landing. A number of fishermen keep fishing diaries and others, including the appellant Mr. Joy, also keep voluntary log books in order to provide data to CEFAS (Centre for Environment, Fisheries and Agriculture Science) which, although confidential and not disclosable to DEFRA, would inform the fishermen themselves of the tally as the month progressed.[42]We note too the evidence that Mr. Joy, in his application for a shellfish licence, provided information about the quantity of plaice and cuttlefish he had caught, thereby indicating his ability to monitor his tally, at least in respect of those fish. In the present case it is not in dispute that the appellants landed and sold amounts of cod which exceeded the October monthly limit of 150kg by a very considerable margin. On just one day, namely 31 October, Mr. Joy had landed just over 150kg and Mr. Bossom 251kg. As we have already stated, it is an agreed fact before us that the judge below found on the evidence that both appellants were fully aware of the mandatory limits on their monthly catches and knew exactly what they were doing.[43]Nor is there any validity, in our view, in the submission that, because the UK is required by Article 6 (6) and Article 8 (3) to monitor the catch of the smaller vessels by way of a sampling plan, masters of such vessels cannot lawfully be required to monitor their own catches through the imposition of monthly catch limits. In fact, as the evidence showed, monitoring by means of sampling has been and has continued since June 2002 to be carried out by DEFRA. It was during such a sampling process that the offending of these two appellants came to light.[44]We are not persuaded, therefore, by Mr. Paines’ submission that the imposition of the monthly catch limits by means of a licence condition is incompatible with the exemption of the under 10 metre fleet from the log book and declaration obligations in Regulation 2847. For the same reasons we see no basis for the suggestion that the imposition of these catch limits infringed the requirement of proportionality.[45]Firstly, as a matter of fact, the limits imposed did not require the appellants to comply with the Community log keeping and landing declaration obligations which, for them, as is accepted, would be onerous and disproportionate. In addition there is no legal or evidential basis for suggesting that it would be disproportionate, as a matter of Community law, to require the under 10 metre fleet to keep some sort of record of the quantity of fish which is caught and sold.[46]Secondly, notwithstanding the obvious undesirability of discarding injured or dead cod caught in excess of the limit, it is well established that the Common Fisheries Policy does not allow fishermen, or the Member States, to avoid quota restrictions by contending that it would be contrary to Community law to discard fish once caught. On the contrary Regulation 2341/2002, establishing the quota for 2003, states so far as is relevant at Article 6:
“Conditions for landing catch and by-catch 1) Fish from stocks for which fishing opportunities are fixed shall not be retained on board or landed unless; a) The catches have been taken by vessels of a Member State having a quota and that quota is not exhausted.”
In any event, the alternative option of closing the fishery for cod once the quota had been met, if fishing for other species were to continue, which Mr. Paines submits would have been in conformity with Community law, would inevitably result in the discarding of any cod caught accidentally in the course of fishing for those other species. a) The catches have been taken by vessels of a Member State having a quota and that quota is not exhausted.”[47]Thirdly, we do not agree with the submission that the system of enforcement in these cases is unworkable without the obligation to complete the landing declarations, from which these appellants are exempt. The evidence in this case, and in particular the statement from Angus Radford of 16/12/04, reveals a three-pronged approach by DEFRA to the control and enforcement of the limits on the under 10 metre fleet at Hastings. Firstly, the local fish merchants voluntarily supply DEFRA, on a weekly basis, with collated landings from vessels based on the beach by quantity of species. Secondly, local people are paid to provide information about the catches. Thirdly, inspectors will attend to carry out spot checks on an ad hoc basis.[48]Enforcement priorities and resources will inevitably dictate which information is acted upon and followed up in these cases and when prosecutions are to be brought, but we reject, without hesitation, the submission that the enforcement system is properly to be described in these circumstances as unworkable. The laws prohibiting drivers of motor vehicles from exceeding the prescribed speed limits on our roads depends, to a large extent, on individual restraint and self-monitoring, but cannot legitimately be said to be unworkable or unenforceable merely because the police have other priorities or lack the resources to monitor and prosecute every offender.[49]Mr. Paines made no oral submissions in support of the arguments contained in the skeleton argument, submitted on behalf of the appellants, that the monthly catch limits also infringed the EU principles of non-discrimination and legal certainty, preferring to regard them as part of his general, proportionality challenge. Nevertheless, for the reasons we have already given, there is in our judgment no merit in the suggestion that, by impliedly requiring under 10 metre vessels to comply with the same record keeping obligations imposed on the over 10 metre vessels, DEFRA were treating different cases in the same way and thereby unlawfully discriminating against the Appellants. This ground of challenge fails on the facts.[50]Nor can the licence restriction be said to infringe the principle of legal certainty. As Mr. Thompson pointed out it is a restriction applicable to a specific category of boat in a specific area, which prevents that category of boat from catching more than a specific quantity of a specific stock for a specific calendar month. The restriction itself is therefore both clear and precise, as the judge below found, and both appellants were fully able, as both the judge and we have found, to keep tally of the catches made so as to avoid criminal sanctions.[51]We agree with Mr. Thompson that there will always be a prosecutorial discretion at the margins in such cases. Further, whilst the penalty in the Crown Court for the offence of breaching a licence condition is an unlimited fine, it is reasonably to be expected that the level of fine imposed by the Court will be proportionate to the wrong doing in any individual case.[52]There has before us been no challenge to the validity of the licence restriction and to the monthly catch limits under domestic law, on the basis of “Wednesbury unreasonableness”. This is unsurprising given that DEFRA’s decision to impose the monthly limits was a clear exercise of the wide discretion conferred upon the relevant ministers by the 1967 Act; and was arrived at after consultation and consideration of the available options, all in the context of the need both to give effect to the Common Fisheries Policy and to conserve the decreasing cod population in the English Channel.[53]For the reasons we have set out above the challenge on the basis of incompatibility with EC law fails and these appeals against conviction must therefore be dismissed.

Applications for leave to appeal sentences

[54]We now turn to consider the applications for leave to appeal against sentence, both applications having been referred to the full court to be heard at the same time as the appeals against conviction. Although these are applications for leave we will continue to refer to Mr Joy and Mr Bossom collectively as appellants.[55]The judge’s relevant sentencing powers are contained in section 11 of the 1967 Act. In relation to section 4(6) of the Act, under which both appellants were charged and indicted, the material terms of section 11 are as follows:
“(1) Any person found guilty of an offence under this Act shall be liable – (a) in the case of an offence under section …[4(6)]… on summary conviction to a fine not exceeding £50,000 or on conviction on indictment to a fine; … (3) Any person guilty of an offence under section …[4(6)]… of this Act shall, subject to subsection (5) below, be liable on summary conviction to a fine not exceeding the value of the fish in respect of which the offence was committed … (5) … any fine to which a person is liable under subsection (3) above in respect of any offence shall be in addition to any other penalty (whether pecuniary or otherwise) to which he is liable in respect of that offence under this section or under any other enactment.”
[56]When passing sentence,

the judge said this (see page 4 of the transcript of his sentencing remarks):

“And so the penalties will be as follows. There will be two fines in each of your cases, one to reflect the value of the fish, and one as a general fine, and you will also pay a contribution towards the prosecution costs. You, Paul Joy, will pay £1,496 by way of fine, representing the value of the fish. You will pay a general fine of £3,500 and I shall order you to pay costs of £2,500 by way of contribution. You, Graeme Bossom, will pay a fine representing the value of the fish of £1,074. You will pay a general fine of £3,000 and you will also make a contribution to the prosecution costs of £2,500.”
[57]Shortly afterwards, when dealing with the period of imprisonment to be served in default of payment,

the judge said this (see page 5 of the transcript):

“The only matter I am just checking is whether these two fines in each case are lumped together to produce a figure to which one then applies the default table, or whether they have to have individual default periods attached to them. Perhaps you would like to look at that, Mr Edmunds, whilst I am listening to how they are going to pay this money.”
[58]The first proposed ground of appeal by both appellants is that, in cases of conviction on indictment such as the present, section 11(1) of the 1967 Act only gives power to impose one fine, not two. It was emphasised that section 11(3) (the only relevant provision that refers to a further fine linked to the value of the fish) relates to summary conviction only and therefore does not apply to the present case. It was also submitted uncontroversially that section 11(5) of the Act does not give the court any further sentencing powers, but merely clarifies the position that the summary fine referred to in subsection (3) is without prejudice to such other fines as the court has the power to impose.[59]It was therefore submitted that:(i) insofar as the judge proceeded on the basis that he was bound to impose two fines, namely a general fine and one reflecting the value of the fish, he erred in law; and(ii) insofar as the judge did expressly impose two fines, he exceeded his sentencing powers. It was further contended that, because the judge had proceeded on the foregoing erroneous basis, the total financial penalty imposed in each case was consequently too high and that, if he had imposed a single fine, it would (and should) have been lower.[60]However, after dealing with an application by Mr Lawrie on behalf of Mr Joy that he be given a period of one year to pay, the judge then heard a similar application by Mr Moser on behalf of Mr Bossom, following which the following exchanges took place between the judge and both counsel with regard to the appropriate period of imprisonment in default of payment (see page 7 of the transcript):

Judge Coltart:

“It is forty-five days in respect of the specific fine and three months in respect of the general fine, I think. I have a feeling one normally lumps them together.”
Mr Lawrie:
“Certainly my view and the view of my friend and myself is that they are to be aggregated because it is to be viewed and treated as a fine, which is a fine attached to a value.”
Mr Moser:
“Yes, I was just looking at the precise words of the Sea Fishing Act, which does not say it is, as it were, aggregated but we have a situation where there are two distinct elements of fine but for one single offence and on that basis …”

Judge Coltart:

“Yes, so it becomes one fine on the basis you could not fine a person twice for the same offence .”
Mr Lawrie:
“Your Honour, yes, and I would venture …”

Judge Coltart:

“So it has to be a fine made up of two elements, and I have probably described it wrongly, but I can correct that.”
Mr Lawrie:
“Yes, but we would invite your Honour to say that the time in lieu should be for the aggregate figure.”

Judge Coltart:

“Yes. Twelve months to pay, three months’ imprisonment in default of payment. Do you both understand that? If you do not pay within twelve months you go to prison for three months and you are still liable to pay the fine. …”
[61]Having regard to everything that was said by the judge during the course of his sentencing remarks, we are not persuaded that there is any substance in this first ground of appeal. As it seems to us, it is clear that the judge intended to impose a total financial penalty on each appellant that was to be calculated by reference to the following two elements:(i) the value of the excess fish caught and landed and(ii) an appropriate general fine. In our view, such an approach was entirely appropriate in the circumstances of this case and cannot be faulted. Whilst we agree that it appears from the earlier passages in his sentencing remarks that the judge was initially minded to impose two fines in each case to achieve his intention, we are satisfied that it is apparent from his later remarks that the judge soon realised that such an approach was not possible. He then expressed himself in terms that made it perfectly clear that he was imposing a single fine in each case, albeit a fine that was made up of the two elements that he had earlier identified. In short, the judge did not fall into error in the manner suggested in this ground of appeal. Rather, he adopted a sensible approach to calculating the total financial penalty that was appropriate in each case and in the final stages of his sentencing remarks made it absolutely clear that he was imposing that total financial penalty by way of a single fine in each case.[62]The second proposed ground of appeal by both applicants is that the total fines were manifestly excessive in all the circumstances. It was suggested that the fines failed to take into account sufficiently the following mitigating factors:(i) the applicants’ pleas of guilty;(ii) the good character of both appellants;(iii) the fact that both appellants had held licences for 33 years and about 25 years respectively without any breaches;(iv) the limited financial means of each appellant;(v) the absence of any significant aggravating features; (vi) the limited profit realised as a result of the relevant breach of each appellant’s licence; and (vii) the limited economic benefit to each appellant resulting from the offences in question.[63]As to the last two factors, it was submitted that, after accounting for other crew members’ shares, the appellants’ true financial benefit from the excess fish was considerably less than the value of the fish in question. In our judgment, there is nothing in that particular point. Each appellant was the licensee and the skipper of the relevant vessel. Each appellant was therefore responsible for the relevant decision-making that resulted in the catching and landing of the excess fish. It was therefore entirely appropriate for the judge to assess the economic benefit and/or profit that had resulted from the appellants’ breaches of licence by reference to the total value of the excess number of fish caught and landed.[64]In our judgment there is no substance in this second proposed ground of appeal. As we have already indicated, the judge’s approach to calculating the total fine to be imposed in each case by reference to the two elements that he identified was entirely correct. For the reasons given in the previous paragraph of this judgment, we are satisfied that the judge was right to regard the total value of the excess fish as the profit and/or economic benefit resulting from the offences. In our view, it is clear that the judge took fully into account all the relevant circumstances and mitigating factors (in particular, each appellant’s limited means) when deciding the appropriate amount of the other element of the total fine in each case (i.e. the general punitive element) and the total that resulted from both elements. Although there are no other decisions of this court in comparable cases from which we can derive any guidance, we are satisfied that the resulting fine appears to be (if anything) relatively modest in each case. Be that as it may, we are completely satisfied that there is no arguable basis for regarding either as manifestly excessive.[65]For those reasons, these applications for leave to appeal against sentence are both refused.

Cited in 2 later judgments