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1 1980

FISHERIES ACT, 1980

PART IV

Legal Proceedings, Penalties, etc.

Certain offences may be tried on indictment.

46. —(1) A person charged with an offence under section 65 , 66 , 69 , 73 , 94 , 95 , 96 , 97 , 127 , 128 , 129 , 130 , 132 , 134 , 135 , 137 , 140 , 145 , 146 , 156 , 176 , 177 or 182 of the Principal Act may be tried on indictment.

(2) A person charged with an offence under section 28 (1) of the Act of 1962 may be tried on indictment and shall, on conviction on indictment, be liable to a fine of an amount not exceeding £2,000 together with an amount not exceeding £50 for each salmon and £5 for each trout in respect of which the offence is committed, or at the discretion of the court, to imprisonment for a term not exceeding two years or to both such fine and such imprisonment.

(3) A person charged with an offence under section 29 of the Act of 1962 may be tried on indictment and shall, on conviction on indictment, be liable to a fine not exceeding £2,000, or at the discretion of the court, to imprisonment for a term not exceeding two years or to both such fine and such imprisonment.

(4) A person charged with contravening a bye-law made by the Minister under section 9 of the Principal Act, being a bye-law which—

(a) prohibits the use, or attempt to use either generally or in a manner specified in the bye-law in fishing for salmon or trout, any drift net, or two or more drift nets joined together, or any drift net, or two or more drift nets so joined, which is of a specified class or description,

(b) prohibits the having on board any boat, either generally or in an area which is specified in the bye-law, any such drift net or nets,

(c) prohibits the use, or attempt to use, in fishing for salmon or trout, any net made wholly or partly from monofilament or multistrand monofilament, or

(d) prohibits the having on board any boat, or the possession for the capture of fish on any quay, on or near any bank of a river or estuary, or on or near any sea coast or at sea, any net mounted or otherwise prepared for use in fishing and made wholly or partly of monofilament or multistrand monofilament, or of monofilament or multistrand monofilament with a mesh greater than a size specified in the bye-law,

may be tried on indictment and shall, if convicted on indictment of an offence under the said section 9 be liable to a fine not exceeding £2,000, or at the discretion of the court, to imprisonment for a term not exceeding two years or to both such fine and such imprisonment.

(5) Any reference to summary conviction in any section of the Principal Act which is mentioned in subsection (1) of this section, or in section 28 or 29 of the Act of 1962, shall be construed as including a reference to conviction on indictment.

(6) Subsection (4) (inserted by section 3 of the Act of 1962) of section 9 of the Principal Act shall be construed and have effect in relation to bye-laws described in that subsection which are also bye-laws described in subsection (4) of this section as if the reference therein to summary conviction included a reference to conviction on indictment.

(7) The provisions of subsections (1), (2), (3) and (4) of this section are in addition to and not in substitution for section 309 (1) of the Principal Act (inserted by section 49 of this Act).

Jurisdiction.

47. —(1) Proceedings for any offence under section 65 , 69 , 97 , 127 , 140 , 176 , 182 or 285 A (inserted by section 24 of the Act of 1962) of the Principal Act or section 29 of the Act of 1962 or for any offence against a bye-law described in section 46 (4) of this Act may be taken in any District Court District, and in case such proceedings are taken and apart from this section the Justice before whom the proceedings are brought would not have jurisdiction to hear and determine the proceedings, then for the purpose of conferring such jurisdiction the offence may be treated as having been committed within the District Court District to which such Justice is assigned.

(2) Where a person is sent forward for trial on indictment by the Circuit Court for an offence under section 65 , 69 , 97 , 127 , 140 , 176 , 182 or 285A (inserted by section 24 of the Act of 1962) of the Principal Act or section 29 of the Act of 1962 or for any offence against a bye-law described in section 46 (4) of this Act and apart from this subsection a judge of that court would, as regards the proceedings, not have power to exercise the jurisdiction vested in that court by section 25 (1) of the Courts (Supplemental Provisions) Act, 1961 , then for the purpose of enabling that judge to exercise such jurisdiction the offence may be treated as having been committed in the circuit to which such judge is assigned.

Proof that boat is foreign sea-fishing boat.

48. —(1) Where in any proceedings for an offence under Chapter II of Part XIII of the Principal Act there is evidence from which it appears to the court that the sea-fishing boat to which the alleged offence relates, or on board which such offence is alleged to have been committed, is either of a foreign character or of foreign origin or that at or about the time of the alleged offence such boat—

(a) wore no flag or wore a flag other than the national flag, or

(b) had marked on her stern the name of any place other than a port mentioned in the Second Schedule to the Mercantile Marine Act, 1955 , or

(c) had on board any books, papers or other documents from which it so appears that the boat was not an Irish ship,

then, until the contrary is shown, such evidence shall be sufficient to prove that such boat is a foreign sea-fishing boat.

(2) Where in proceedings for an offence under Chapter II of Part XIII of the Principal Act it is proved that the sea-fishing boat to which the alleged offence relates, or on board which such offence is alleged to have been committed, wore at or about the time of the alleged offence a flag other than the national flag, the presumption raised by subsection (1) of this section, insofar as it depends on that proof, may be rebutted by the defendant proving that the flag so worn was not a flag distinctive of nationality.

(3) The provisions of this section are in addition to, and not in substitution for, those of section 19 (3) of the Act of 1962 (as amended by section 73 of this Act).

Trail of offences.

49. —The following subsection is hereby substituted for subsection (1) of section 309 of the Principal Act:

“(1) Notwithstanding anything contained in any other enactment, an offence under any provision of the Fisheries Acts, 1959 to 1980, other than a section specified in Table I to section 2 of the Fisheries (Amendment) Act, 1978 , may be heard and determined in a summary way by a District Justice upon the complaint, verbal or otherwise, of a member of the Garda Síochána, the Central Board, a regional board, an officer or servant of a board, a private waterkeeper within the meaning of Part XVIII of this Act or any other person.”.

Alteration of certain penalties under Principal Act or Act of 1962.

50. —(1) A person convicted by the District Court of an offence for which a penalty is provided in any section of the Principal Act specified in column (2) of Part I of the Table to this section at any reference number shall, in lieu of so much of the penalty so provided as consists of a fine, imprisonment, a fine or imprisonment, or a fine and imprisonment, be liable to the appropriate penalty specified in column (3) of the said Part I at that reference number, and that section shall be construed and have effect accordingly.

(2) (a) A person convicted of an offence under subsection (4) of section 9 of the Principal Act (inserted by section 3 of the Act of 1962, other than an offence against a bye-law described in section 46 (4) of this Act) shall, in lieu of so much of the penalty specified in that subsection as consists of a fine, be liable to a fine not exceeding £200, and the said subsection (4) shall be construed and have effect accordingly.

(b) A person guilty of an offence against any bye-law, other than a bye-law described in section 46 (4) of this Act, in relation to which subsection (2) of section 9 of the Principal Act applies and which was made before the commencement of section 3 of the Act of 1962 shall, in lieu of so much of the penalty specified in section 32 (2) of the Act of 1962 as consists of a fine and notwithstanding anything contained in the said subsection (2), be liable to a fine not exceeding £200, and the said section 32 (2) shall be construed and have effect accordingly.

(c) A person convicted of an offence under subsection (4) of section 9 of the Principal Act (inserted by section 3 of the Act of 1962), being an offence against a bye-law described in section 46 (4) of this Act, shall, in lieu of so much of the penalty specified in that section as consists of a fine, be liable to a fine not exceeding £500, and the said subsection (4) shall be construed and have effect accordingly.

(3) (a) A person convicted on indictment of an offence under section 164 of the Principal Act (inserted by section 16 of the Act of 1962) shall, in lieu of the penalty specified in paragraph (b) of subsection (4) of that section, be liable to a fine not exceeding £2,000, or at the discretion of the court, to imprisonment for a term not exceeding two years or to both such fine and such imprisonment, and the said section 164 shall be construed and have effect accordingly.

(b) A person convicted on indictment of an offence under section 285A (1) of the Principal Act (inserted by section 24 of the Act of 1962) shall, in lieu of the penalty specified in paragraph (b) of that section, be liable to a fine not exceeding £2,000, or at the discretion of the court, to imprisonment for a term not exceeding two years or to both such fine and such imprisonment, and the said section 285A (1) shall be construed and have effect accordingly.

(c) A person convicted on indictment of an offence under section 65 , 66 , 73 , 94 , 95 , 96 , 97 , 127 , 130 , 132 , 134 , 135 , 137 , 140 , 145 , 146 , 156 , 176 , 177 or 182 of the Principal Act, as amended by section 46 (1) of this Act, shall be liable to a fine not exceeding £2,000, or at the discretion of the court, to imprisonment for a term not exceeding two years or to both such fine and such imprisonment.

(d) A person convicted on indictment of an offence under section 69 , 128 or 129 of the Principal Act, as amended by section 46 (1) of this Act, shall be liable to a fine not exceeding £2,000 and in the case of a continuing offence to a further fine not exceeding £100 for each day during which the offence is committed, or at the discretion of the court, to imprisonment for a term not exceeding two years or to both such fine and such imprisonment.

(4) A person convicted by the District Court of an offence for which a penalty is provided in any section of the Act of 1962 specified in column (2) of Part II of the Table to this section at any reference number shall, in lieu of so much of the penalty so provided as consists of a fine, imprisonment, a fine or imprisonment, or a fine and imprisonment, be liable to the appropriate penalty specified in column (3) of the said Part II at that reference number, and that section shall be construed and have effect accordingly.

(5) Where a person is convicted of an offence under section 69 of the Principal Act, the engine in respect of which the offence was committed shall, as a statutory consequence of conviction, stand forfeited.

(6) Where a person is convicted of an offence under section 95 of the Principal Act, the net in respect of which the offence was committed shall, as a statutory consequence of conviction, stand forefeited.

(7) Where a person is convicted of an offence under section 152 of the Principal Act, the engine or other thing used to commit the offence shall, as a statutory consequence of conviction, stand forefeited.

(8) This section shall have effect as respects offences committed after the commencement of this section.

TABLE

PART I

Ref. No.

Section of Principal Act

Penalty

(1)

(2)

(3)

1.

12, 13, 80, 289, 305.

A fine not exceeding £50.

2.

49, 105, 106, 152, 153, 162, 240, 241, 242, 243, 255, 265, 286, 287, 288, 290, 294, 298, 303, 304, 306, 323.

A fine not exceeding £200.

3.

17, 65, 66, 73, 91, 92, 93, 112, 113, 119, 120, 121, 122, 125, 130, 140, 141, 143, 144, 145, 146, 163, 167, 168, 169, 178, 179, 180, 181, 237, 238, 239, 253, 273, 274, 277, 285, 291.

A fine not exceeding £500.

4.

69, 123, 128, 129.

A fine not exceeding £500 and, in the case of a continuing offence, a further fine (not exceeding in all £600) not exceeding £50 for each day during which the offence is continued.

5.

100.

A fine not exceeding £500 and, in the case of a continuing offence, a further fine (not exceeding in all £600) not exceeding £100 for each day during which the offence continues after conviction thereof.

6.

111.

A fine not exceeding £500 and a further fine (not exceeding in all £600) not exceeding £10 per day until the defendant restores the bed of the river in respect of which the offence under the said section 111 is committed to its original state.

7.

124.

A fine not exceeding £500 and a further fine (not exceeding in all £600) not exceeding £50 for each day during which the neglect referred to in the said section 124 continues.

8.

172.

A fine not exceeding £500 and a further fine (not exceeding in all £600) not exceeding £50 for each day during which the failure referred to in the said section 172 continues.

9.

127, 134, 135, 136, 137, 138, 177.

A fine (not exceeding in all £600) of an amount not exceeding £500 together with an amount not exceeding £50 for each salmon and £10 for each other fish in respect of which the offence under the section is committed.

10.

94.

A fine (not exceeding in all £600) of an amount not exceeding £500 together with an amount not exceeding £50 for each salmon and £10 for each other fish caught by means of any net used in the commission of the offence under the said section 94.

11.

95, 96, 97, 99, 102, 103, 104, 107, 110, 114, 116, 131, 132, 164, 165, 166, 170, 171, 173, 174, 183, 285A, 301, 308.

A fine not exceeding £500 or, at the discretion of the Court, imprisonment for any term not exceeding six months or both such fine and such imprisonment.

12.

156, 157, 176, 182.

A fine (not exceeding in all £600) of an amount not exceeding £500 together with an amount not exceeding £50 for each salmon and £10 for each other fish in respect of which the offence under the section is committed or, at the discretion of the Court, imprisonment for a term not exceeding six months or both such fine and such imprisonment.

PART II

Ref. No.

Section of Act of 1962

Penalty

(1)

(2)

(3)

1.

27.

A fine not exceeding £100.

2.

28(1).

A fine (not exceeding in all£600) of an amount not exceeding £200 together with an amount not exceeding £50 for each salmon and £10 for each trout in respect of which the offence is committed.

3.

28(3), 28(5)

A fine not exceeding £200.

4.

29.

A fine not exceeding £500 or, at the discretion of the Court, imprisonment for any term not exceeding six months or both such fine and such imprisonment.

Forfeiture of licences and consequential disqualification orders.

51. —The following is hereby substituted for section 90 of the Principal Act:

“90—(1) (a) Where—

(i) a person is convicted of any offence under this Act, other than an offence described in subsection (3) of this section, and

(ii) such person is the holder of a fishing licence or licences or an oyster fishing licence or licences,

the court by whom such person is convicted may, in addition to any other penalty, direct such licence or licences to be forfeited.

(b) Where a licence is directed to be forfeited under this subsection, such licence shall thereupon cease to be in force.

(2) (a) Where a person who is not the holder of a fishing licence or an oyster fishing licence is convicted of an offence under any provision of this Act, the court by whom the person is convicted may, in addition to any other penalty, declare that the person shall be disqualified for holding a fishing licence or an oyster fishing licence during such period not exceeding one year as the court may specify.

(b) Where a declaration is made under this subsection, the declaration shall operate to disqualify the person to whom it relates for holding a licence of the kind specified in the declaration, and notwithstanding anything contained in this Act a licence of that kind shall not be issued to such person in respect of the period specified in the declaration.

(3) (a) This subsection applies to the following offences, namely—

(i) an offence under section 65, 69, 73, 94, 95, 96, 97, 127, 128, 129, 130, 132, 134, 140, 145, 146, 176, 182, 285A (inserted by section 24 of the Act of 1962) or 301 of this Act,

(ii) an offence under section 29 of the Act of 1962,

(iii) an offence under any bye-law described in subsection (4) (inserted by section 3 of the Act of 1962) of section 9 of this Act which is also a bye-law described in section 46 (4) of the Fisheries Act, 1980.

(b) Where a person is convicted of an offence which is both an offence to which this subsection applies and a second or any subsequent such offence, the court by whom such person is convicted shall make an order (in this Act referred to as ‘a consequential disqualification order’) declaring him to be disqualified for holding an ordinary fishing licence in respect of any scheduled engine mentioned in Part II of the Fourth Schedule to this Act, and such order shall operate so to disqualify the person to whom it relates during the period of three years commencing on the date on which the order is made.

(4) Subject to subsection (5) of this section, in every case in which an appeal may be brought in respect of a conviction of an offence to which subsection (3) of this section applies, jurisdiction to make, confirm or annul a consequential disqualification order is hereby conferred on the appellate court.

(5) A consequential disqualification order shall not be annulled on appeal unless the conviction by reference to which it was made is reversed.”.

Payment of certain fines as compensation; delivery of oysters or other fish.

52. —(1) (a) Where a court imposes a fine or affirms or varies a fine imposed by another court for an offence mentioned in subsection (4) of this section of which a person was convicted, it may, at its discretion, on the application (made before the time of such imposition, affirmation or variation) of any person who was summoned as a witness on behalf of the prosecution in the proceedings in which the fine was imposed and who suffered loss or damage resulting, wholly or partly, from the offence, provide by order for the payment of the amount of the fine or of a specified part of it as compensation in respect of the loss or damage to the person making the application.

(b) An application shall not lie under paragraph (a) of this subsection in respect of any loss or damage if proceedings claiming damages for the loss or damage have been instituted in any court.

(2) If a person is convicted of an offence under section 54 (17) of this Act or section 253 of the Principal Act by reason of his having taken away oysters or other fish from an oyster bed or other place, if the oysters (or any of them) or the other fish in respect of which the offence was committed have or has not then been sold, they or it, as may be appropriate, shall, as a statutory consequence of conviction, stand forfeited, and the court may direct their or its delivery to the owner or occupier of the oyster bed or other place from which they or it were or was taken or the person to whom the relevant licence was granted or who is entitled to the benefit of such licence.

(3) Where pursuant to this section the whole or part of a fine is paid to a person and the person is awarded damages by a court in respect of the loss or damage to which the payment relates, the payment shall be deemed to be in satisfaction of so much of the damages as is equal to the amount of the payment.

(4) The offences referred to in subsection (1) of this section are offences under section 54 (17) of this Act or section 253 or 265 of the Principal Act.

Power of authorised officer to take boat to port, etc.

53. Section 301 of the Principal Act is hereby amended by—

(a) the insertion in subsection (2) of the following paragraphs after paragraph (d):

“(da) if the boat contains or he believes or suspects that it contains fish unlawfully captured he may without summons, warrant or other process take the boat and all persons thereon to the nearest or most convenient port or other place, and if he decides to take the steps mentioned in subsection (2A) of this section, he may, pending the taking of those steps, detain the boat and the persons;

(db) he may for the purpose of exercising the power conferred on him by paragraph (da) of this subsection use such force as he may consider necessary;”,

(b) the insertion of the following subsection after subsection (2):

“(2A) Where an authorised officer has in exercise of the powers conferred on him by this section taken any boat and the persons thereon to a port or other place, he shall, as soon as may be, bring the person who at the time the boat was so taken was, or who appeared to him to be, in charge of the boat, and any other person who was then thereon, and against whom, in either case, proceedings for an offence under section 65 , 69 , 73 , 97 , 127 , 132 , 140 or 182 of the Principal Act or section 29 of the Act of 1962 or for a contravention of a bye-law described in paragraph (a), (b), (c) or (d) of section 46 (4) of the Fisheries Act, 1980, are or are about to be instituted before a District Justice or, where no District Justice is immediately available, a Peace Commissioner, and thereupon the District Justice or Peace Commissioner (as the case may be) shall, if he is satisfied that the proceedings are or are about to be instituted against the person, by order directed to an authorised officer or officers require the authorised officer or officers to detain at a specified port or other place in the State either, as may be specified in the order, such boat and the person or persons brought before him or such boat only until the proceedings have been adjudicated upon by a District Justice, and the boat or the boat and such person or persons, as may be appropriate, shall be detained accordingly.”,

(c) the insertion of “, whether such loss or damage occurs by reason of something done personally by such officer or by a person acting under his orders,” before “unless” in subsection (6), and the said subsection (6), as so amended, is set out in the Table to this section.

TABLE

(6) No authorised officer shall be liable for any loss or damage occasioned by or in the course of the exercise of any of the powers conferred on him by this section, whether such loss or damage occurs by reason of something done personally by such officer or by a person acting under his orders, unless such loss or damage was caused by him wantonly or maliciously.