Fishing rights are private. It is not the fish but the right to fish for them that is owned. Salmon fishing rights are heritable titles, which may be held with, or separate from, the land, and carry with them the subsidiary right to fish for trout and other freshwater fish. This right must not be exercised in a way that will interfere with the rights of the riparian owner. Where the right is held separate from the land, the proprietor of the right has an implied right of access for the purpose of exercising his right to fish for salmon.
The rights to fish for freshwater fish belong to the owner of the land that is adjacent to the water. An exception to this is in respect of so called public waters, where there exists a public right to fish for trout and other freshwater fish. A public river is both tidal and navigable, and the right extends as far up river as ordinary spring tides (as marked on an OS map).
It is a criminal offence to fish for salmon without the legal right or without written permission from the owner of the right. In the case of fishing for trout and other freshwater fish, the general rule is that fishing without permission is a civil rather than a criminal offence. However, unauthorised fishing can be made the subject of criminal proceedings under the Theft Act 1607, where any person removing fish from a stank - any artificial pond or reservoir which has been stocked and has neither inlet nor outlet - without authority is guilty of theft.
Where a Protection Order is in force, it is a criminal offence to fish for or take freshwater fish in the inland waters in the prescribed area without legal right, or written permission from a person having such right. Protection Orders are made under the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003, where Scottish Ministers are satisfied that, if the proposals submitted were implemented, there would be a significant increase in the availability of fishing for freshwater fish in those inland waters to which the proposals relate. There are 14 Protection Orders currently in force. Scottish Ministers must be sure that fishing will be made available to a degree, and on such terms and conditions, as thought reasonable, and that the need for conservation of any species of fish has also been taken into account.
A map of Protection Orders in Scotland can be accessed here.
The remaining exception from the general rule of fishing for freshwater fish without permission applies in those waters that flow into the Solway, except for the River Annan. In these rivers, the provisions of section 9 of the Solway Act 1804 make it an offence to fish for any fish without the permission of the landowner or occupier.
Ownership of Salmon Fishing Rights
Orkney and Shetland
Udal Law functions here, under which rights to fish belong to the landowners.
Fishing in rivers and estuaries
The right of fishing for salmon has been regarded historically as being vested in the Crown as a heritable title. A number of the net and rod fisheries that are operated in rivers, lochs and estuaries are owned by the Crown. These may be leased to netsmen or anglers or angling clubs and associations. A great many fisheries, both net and rod, are owned by the operators as heritable titles. The Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 states, "If any person without legal right, or without written permission from a person having such right, fishes for or takes salmon in any inland waters including any part of the sea within one mile of the mean low water springs, he shall be guilty of an offence...". The Crown right of salmon fishing permits fishing by all lawful methods.
Fishing in the sea
The right of fishing for salmon in the sea includes all territorial waters outside estuary limits. About 30 per cent of net fisheries which may operate in the sea are owned by the Crown - some are not fished at all, but a number of the others are leased to netsmen. A number of coastal fisheries are owned by the operators as heritable titles.
Ownership of Freshwater Fishing Rights
Though, in general, it is not a criminal offence to fish for or take trout and other freshwater fish in Scotland, this does not imply that there is a free right to fish anywhere. The rights of riparian owners (who own the fishing rights) are protected by principles of civil law and permission should always be sought before fishing. No one, even if they are lawfully on the bank of a river or loch under a right of access, has an implied right to fish there. Fishing is only available to the owner of a fishery or with their written permission. Unlike in England and Wales, no national rod licence is required to fish in Scotland.
Please see section 11 of the 2003 Act which states "Any person who without legal right, or without permission from a person having such right, fishes in a proper stank or loch shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 1 on the standard scale."