The Powers of Water Bailiffs and Wardens to Enforce the Salmon and Freshwater Fisheries Acts

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Powers of Water Bailiffs

2. Water Bailiffs

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see eg ss.54 & 55

s.56

In the 2003 Act, the various powers of water bailiffs are stated to apply in relation to any of the provisions of the Act, but there is one general disapplication: the powers do not apply to the enforcement of Protection Orders made under section 48. (Enforcement of protection orders is the responsibility of wardens - see chapter 3).

NB all the references in this chapter to the powers of bailiffs in relation to the provisions of the 2003 Act are subject to this exception.

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2003 Act, s.69(1)

ss.55(4)&(5)

A water bailiff is defined in the Act as any person appointed as such under the Act by a District Salmon Fishery Board or by Scottish Ministers. The production by a bailiff of his or her warrant, or any badge or device indicating the appointment, is sufficient authority for the exercise of the powers.

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2003 Act, ss.54(1) and 55(1),(3)&(6)

Extent of powers

A water bailiff appointed by a District Salmon Fishery Board has various statutory powers of entry, search, seizure and arrest. These extend to the whole of the district of the District Board making the appointment and to any adjoining salmon fishery district. The area of a salmon fisheries district is either the area designated as that district by a Designation Order:

s.34(2)

- made under section 34(2) of the 2003 Act, or

- made under section 1 of the Salmon Act 1986;

or, if no such designation has been made,

s.34(1)

- the catchment area of all the rivers flowing into the sea within the coastal limits of the district as defined by byelaw made under section 6 of the Salmon Fisheries (Scotland) Act 1862 and extending seaward for 5 kilometres from mean low water springs. (Such of those byelaws as were made before enactment of the Salmon Fisheries (Scotland) Act 1868 were reproduced as schedule A to that Act.)

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2003 Act, s.55(5)

A water bailiff appointed by Scottish Ministers has the same powers as those appointed by District Boards but the exercise of those powers extends only to such district(s) or part of a district as is specified in the instrument of appointment - unlike a district board bailiff there is no extension to any adjoining district. This is the only practical difference between the powers of the two classes of water bailiff.

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2003 Act, s.54(1)

1967 Act, s.18(2) &
1984 Act, s.7(1)&(2)

s.55(7)

Power of entry

A water bailiff may, at any hour, enter and remain on land in the vicinity of a river or the sea coast for the purpose of preventing a breach of the provisions of the 2003 Act, or for detecting persons guilty of a breach of any of those provisions. This power also applies in relation to breaches of salmon-related orders made under the 1967 and 1984 Acts but only in those districts for which there is a district board constituted. For the purpose of this provision, land includes land covered by water but does not include a dwelling house or any associated yard, garden or outhouse etc.

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2003 Act, s.55(1)(a)

A water bailiff may enter land for the purpose of examining a fixed engine or obstruction, or any lade. In this context:

s.69(1) (in this context, an engine is any device)

- a fixed engine means any engine, net or trap used for taking salmon other than a sweep net used in 'net and coble' mode ( see definition of net and coble in Appendix B);

s.69(1)

- a lade includes any artificial channel through which water is diverted from any inland water in which salmon or trout are present; and

s.55(7)

- land includes land covered by water but does not include a dwelling house or any associated yard, garden, outhouse, etc.

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2003 Act, s.52

A water bailiff may also, on the authority of a warrant from a sheriff or justice of the peace, enter any premises or vehicle, if necessary by force, for the purpose of detecting whether:

- a breach of a provision of the 2003 Act has occurred, or

- any salmon or trout illegally taken, or any illegal nets or other engines or instruments are concealed, on the premises or in the vehicle.

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1937 Act, s.6(1)

Any person, including a water bailiff, suspecting an offence against the Diseases of Fish Act 1937 may, with a warrant from a justice of the peace, enter any land (including any inland or marine fish farm) to seize any fish, fish eggs, foodstuff or articles suspected of having been imported, removed or about to be removed in contravention of the act or any licence, order or notice made under it. See also the provisions described at paragraphs 41 and 42.

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2003 Act, s.55(1)(b)

s.55(1)(c)

Power of search

A water bailiff may:

- stop and search any boat which is used in fishing or any boat if there is reasonable cause to suspect that it contains salmon or trout; and

- search and examine nets or other instruments used in fishing, or any basket, pocket or other receptacle which there is reasonable cause to suspect of containing salmon or trout illegally taken.

The reference to 'pocket' does not authorise the search of a person.

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ss.55(2)

1967 Act, s18(2) & 1984 Act, 7(1)&(2)

If a water bailiff has reasonable grounds for suspecting that evidence of an offence against the 2003 Act, or against any salmon-related order made under the 1967 or 1984 Acts, is to be found in a vehicle on private land adjoining water, or in a stationary vehicle on a public road adjoining such land or water, the bailiff may search that vehicle.

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2003 Act, s.52(1)

ss.52(3)

s.52(4)

The power of entry under warrant, described at paragraph 18 above, is for the purpose of search in relation to offences under the 2003 Act or illegally taken salmon or trout, or illegal nets, engines or other instruments. A water bailiff authorised by such a warrant may also search anyone found in the premises or the vehicle, or anyone who the bailiff reasonably believes has recently left or is about to enter them. In any such search, no person shall be searched except by someone of the same sex.

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2003 Act,

s.21(2)&(6)

A water bailiff may open any package consigned or sent by common carrier, or brought to any place to be so consigned or sent, which is suspected of containing salmon or trout.

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2003 Act, s.55(1)(d)

1967 Act, s.18(2) & 1984 Act, s.7(1)&(2)

Power to seize fish, articles, boats or vehicles

A water bailiff may seize any fish, instrument or article, boat or vehicle liable to forfeiture under section 60 of the 2003 Act. This power is also available in relation to items forfeitable on conviction of a contravention of salmon-related orders made under the 1967 or 1984 Acts.

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2003 Act, s.52(1)

A bailiff may also seize any illegally-taken salmon, illegal nets, engines or other instruments found in the course of a search made under warrant from a Sheriff or Justice of the Peace.

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*see para 23

s.21(3)&(6)

s.21(4)

If a package sent by common carrier is found to contain salmon or trout* but is not marked as required by section 21(1) of the 2003 Act: or if there is reasonable cause to suspect that salmon or trout in a properly marked package is being dealt with contrary to law, then a water bailiff may detain the package and its contents pending proceedings for an offence against any provision of the Act. If, before the conclusion of those proceedings, any of the salmon or trout become unfit for human consumption the water bailiff may destroy them or have them destroyed.

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s.60(3)

s.60(4)

Any fish seized under the provisions described in paragraphs 24 to 26 above may be sold by the person seizing it. The net proceeds of the sale should be kept safely pending the outcome of the case and they are liable to forfeiture in the same way as the fish sold. But the person seizing the fish is not required to sell it, and is not liable on account of any failure to do so.

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For power to seize fish, eggs of fish, foodstuffs or articles suspected of having been dealt with in contravention of the Diseases of Fish Act 1937 , see paragraphs 19 and 41.

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2003 Act, s.8(1) s.20(6)

Water bailiffs are exempt from the offence of removing dead salmon or trout from any waters including the sea within 1.5 kilometres from low water mark. They are also protected from committing an offence against section 20 of the 2003 Act (possessing salmon illegally taken etc) in respect of anything done in good faith for the prevention or detection of crime or the investigation or treatment of disease.

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s.55(6) and 1967 Act, .18(2) & 1984 Act s.7(1)&(2)

Power of arrest

A water bailiff may, without warrant, seize and detain any person found committing an offence against any provision of the 2003 Act or any salmon-related offence under the 1967 or 1984 Acts. (But remember the general caveat at paragraph 12 above: none of the powers of a water bailiff extend to policing a Protection Order made under section 48 of the 2003 Act.)

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2003 Act, s.58

1967 Act .18(2) & 1984 Act s.71(1)&(2)

Obstruction of a water bailiff

It is an offence for any person to refuse to allow water bailiffs to exercise the powers conferred by the 2003 Act or to obstruct them in the exercise of those powers. This applies also to their powers in relation to salmon-related orders made under the 1967 and 1984 Acts.