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The legal basis of fishing for salmon and freshwater fish in Scotland
This review draws heavily on the information provided in "The Law of Game, Salmon & Freshwater Fishing in Scotland" by Stanley Scott Robinson*. Nothing contained in this review should be taken to be the definitive description of the law as it stands. In all cases, the relevant Acts themselves should be consulted.
* The Law of Game, Salmon & Freshwater Fishing in Scotland. Stanley Scott Robinson. Published by Butterworths and the Law Society of Scotland, 1990.
SALMON
Laws relating to fishing in Scotland are ancient, particularly those made to regulate fishing for salmon. The requirement for a weekly close time when no fishing for salmon is permitted has been a feature of Scottish fisheries management for more than 700 years. References are made in the literature to a law dating from the time of Alexander II (13th Century), or perhaps even William the Lion, relating to the use of cruives and the need for a free space to be left in mid stream during the weekly close time, the gap being-
"in sa mekill that ane swine of thre zeir auld and weill fed is of length, and may turn him within it, in sic ane manner that nather his grunzie nor his tail tuich ony of the sides of the cruives that are biggit on ilk side of the water"
It has not been possible to identify the Act positively but references in subsequent legislation suggest that an Act in the terms above, or very similar, must have existed.
The first Act that can be positively identified is an Act of 1424 prohibiting killing of salmon during "time forbidden", a clear reference to close times. A second Act was introduced in the same year to regulate the construction of cruives (traps) to catch salmon in tidal waters and to repeat the requirement to observe the weekly close time, the "Setterday slop". Subsequent legislation between the 15th and 19th Centuries included laws to restrict further the use of cruives, to prevent the destruction of fry, smolts and kelts, to restrict the methods of fishing for salmon and freshwater fish and to establish the river-by-river management system for salmon in Scotland. During the 20th Century, legislation has been introduced to regulate further the methods that may be used and to define weekly and annual times when fishing for salmon and trout is permitted. Further legislation has also been introduced to modify the designation of salmon fishery districts and the membership and election procedures for DSFBs.
Definition
Section 24(1) of the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951 defines salmon as:
"Salmon" includes all migratory fish of the species Salmo salar and Salmo trutta and commonly known as salmon and sea trout respectively or any part of any such fish; "
Ownership of and access to salmon fishing
Ownership
Until captured, salmon are wild animals. Once captured, the salmon belongs at common law to the captor. However, numerous statutes forbidding the taking of salmon without right or written permission, and forfeitures imposed by statute, have made possession of salmon safe only where they have been taken by lawful means. Nevertheless, the basic position is that it is not the salmon but the right to fish for them that is owned.
The right of fishing for salmon has been regarded historically as being vested in the Crown as a heritable title (except in Orkney and Shetland, see later). Thus, nobody may fish for salmon in rivers or estuaries or in the sea within territorial limits without permission of the Crown or the party vested in the Crown rights. In many cases in rivers, estuaries and in the sea, the rights have been granted to private individuals, companies, local authorities and others. Salmon fishing rights are heritable titles and may be held separately from ownership of the land or may have been given along with ownership of the land. Where the right is held separately 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 fishing right must be exercised in such a way that it causes the least prejudice to the rights of the riparian owner.
The right to fish for salmon carries with it the inferior right to fish for trout but this right must not be exercised in a way that will interfere with the rights of the riparian owner.
Orkney and Shetland
In the Northern Isles, the Norwegian system of Udal Law preceded the feudal system and still pertains. Under this system, the rights to fish were not vested in the Crown but belonged to the landowners.
Fishing in rivers and estuaries
The Crown right of salmon fishing permits fishing by all lawful methods, including net and coble, fixed engine, rod and line and, where applicable, cruives. The greatest of these is the right of fishing by net and coble and the right of rod fishing cannot be exercised if, by so doing, there will be interference with the right to fish by net and coble.
Many of the net and rod fisheries which are operated in rivers, lochs, estuaries and the sea are owned by the Crown. Some are not fished at all and some are leased to netsmen or anglers or angling clubs or associations. A great many fisheries, both net and rod, are owned by the operators as heritable titles.
A cruive is a form of trap comprising a low dam built of stone across a river with one or more traps set in gaps in the dam. The right to fish by cruive may be operated only where there is an express Crown grant of cruive fishing or the right has been obtained by the prescriptive possession of cruives. Cruives are legal only in that part of a river where there is no perceptible movement of the tide.
Fishing in the sea
The right of fishing for salmon in the sea, vested in the Crown, is a universal one and includes all territorial waters outside estuary limits. The normal methods used are net and coble and fixed engines (stake nets and bag nets usually). These methods were defined in the Salmon (Definition of Methods of Net Fishing and Construction of Nets) (Scotland) Regulations 1992(SI 1992/1974) and subsequent amendments.
Many net fisheries which operate in the sea are owned by the Crown. Many are not fished at all but some are leased to netsmen. A number of fixed engine fisheries are owned by the operators as heritable titles.
Access
Section 1 of the 1951 Act (as amended by the Salmon Act 1986) states:
"1. If any person without legal right, or without written permission from a person having such right, fishes for or takes salmon in any waters including any part of the sea within one mile of mean low water springs, he shall be guilty of an offence ......"
Thus, access to salmon fishing is available only to the owner of a salmon fishery or with the express, written permission of the owner. The owner may attach conditions to the permission, such as method, location, times available etc. The owner may not, however, give permission to do anything that is unlawful. Unlike in neighbouring countries, no rod licence is required.
Access to rod fisheries for those without right is thus by private agreement with the owner. Access is widely available throughout Scotland but costs involved depend on a number of factors, including catch expectations, whether accommodation is attached, whether a ghillie is provided and so on.
Regulations
Weekly Close Times
The prohibition of fishing for salmon during the weekly close time is contained in section 13 of the 1951 Act, as amended by the Freshwater and Salmon Fisheries (Scotland) Act 1976 (section 7 and Schedule 3) and the Salmon (Weekly Close Time) (Scotland) Regulations 1988 (SI 1988/390) made under the terms of section 3(3) of the 1986 Act.
Nets - during the lawful fishing season, fishing for salmon by net is not permitted between 6 pm on Friday and 6 am on the following Monday. This is known as the weekly "slap".
Net and coble fisheries must not operate during the weekly close time.
In bag net fisheries, the leader must be removed and taken out of the water.
In jumper nets, a clear opening of at least four feet in width must be made and maintained free of obstruction in each trap.
In fly nets, the traps must either be raised and tied up to the upper ropes or lowered and tied to the lower ropes to prevent the capture or obstruction of salmon.
Unless these actions are impossible, for example because of wind or weather conditions, the obligation placed on proprietors and occupiers of net fisheries is absolute.
Rods - the weekly close time for rods is Sunday.
Annual Close Times
The laws governing salmon fishing have, for at least the last 500 years, prescribed close seasons to prohibit the taking or killing of fish during times of the year when they are spawning or have been considered to be unfit for human consumption.
Section 6(1) of the 1986 Act requires that the annual close time shall be a continuous period of not less than 168 days and is to apply to every mode of fishing for or taking salmon except during periods within the close time when it is permitted to fish by rod and line. The annual close time for the River Tweed is a continuous period of not less than 153 days.
The exact dates of annual close times vary between Salmon Fishery Districts but are generally from about the end of August to mid-February. The extensions into the close time when it is permissible to fish by rod and line generally fall at the end of the net fishing season and extend usually to about the end of October. In a few cases, rod fishing is permitted into November, such as in the Annan and Irvine, or even to the end of that month, such as in the Tweed and the Nith. In some cases, rod fishing is permitted before the start of the net fishing season, e.g. in January on the Halladale, Helmsdale, Hope and Polla and the Tay. In these cases, the rod fishing season terminates usually at the end of September or in mid-October.
The close seasons for most Salmon Fishery Districts date from byelaws of 1864 and 1865 made under section 6(5) of the Salmon Fisheries (Scotland) Act 1862. That Act was repealed by the 1986 Act but the byelaws were preserved. Close seasons for other Districts have been defined in Statutory Instruments relating to the Districts concerned.
Under the terms of section 6 of the 1986 Act, the Scottish Ministers may prescribe for any district the dates and times of the annual close time (although it may not be made less than 168 days), and the periods within that close time when it is permitted to take salmon by rod and line, and may make different provisions for different parts of the district. An "Annual Close Time Order" may only be made upon an application by a District Salmon Fishery Board or, where there is no such Board, by two proprietors of salmon fisheries in the district.
Fishing by rod and line
Section 24(1) of the 1951 Act, as amended by section 8(6) of the 1986 Act, defines rod and line as:
"single rod and line with such bait or lure as is lawful at the passing of this Act and, in the case of fishing for salmon in an area to which and at a time during which regulations made under section 8 of the Salmon Act 1986 apply, is not specified in such regulations in respect of that area and time".
This definition has been taken to preclude the use of double rod fishing, cross line fishing, set lines, otter fishing, burning the water etc as proscribed in the Trout (Scotland) Act 1860, which was repealed by the 1951 Act.
Application may be made by a DSFB to Scottish Ministers to make regulations specifying baits and lures that may not be used in its district. The proposal may apply for different times when and areas where the regulations take effect. Eighteen Orders specifying baits and lures have been made, usually to prohibit the use of shrimps, prawns or worms as bait and the use of lures bearing multiple sets of hooks.
Fishing by net and coble
This method was defined in SI1992/1974 and subsequent amendments. The regulations define the method of fishing and also the construction of the net in terms of twine thickness, mesh size and hanging ratio. Fishing by net and coble involves the use of a boat, the coble, and a sweep net or beach seine net. The net must not be designed or constructed to catch fish by enmeshing them. No part of the net may be constructed from monofilament twine. The net must be paid out and hauled as quickly as is practicable and must not be allowed to remain stationary or be allowed to drift with the tide or current. The net must be kept in motion at all times and under the effectual control of the fishermen.
Fishing by fixed engines
These gears are also defined in SI1992/1974 and subsequent amendments. The regulations define the method of fishing and also the construction of the net in terms of length of leader, maximum length of a gear unit, twine thickness, mesh size and hanging ratio. No part of the gear may be designed or constructed to catch fish by enmeshing them. No part of the net may be constructed from monofilament twine. Fixed engines are trap nets which rely on the fish following a curtain of net, the leader, into a series of ever-smaller chambers in the trap. The fish remain free-swimming until they are removed by the fishermen. Fixed engines include bag nets, fly nets and other stake nets. Bag nets are fished usually in deep water and are held in position by floats and anchors. Stake nets are usually fished on sandy shores into which the stakes which support the gear are driven. Other nets used in the Solway Firth include poke nets and haaf nets. Poke nets are simple traps set in long lines on a series of poles driven into the bed of the Firth. Haaf nets are an ancient form of net thought to have been introduced by the Vikings. The gear comprises a type of large dip net held in the current or tide by the fisherman and raised when a fish is seen or felt to enter. Fishermen stand in line out from the bank towards the middle of the channel, changing positions as the tide rises or falls. The starting positions of the fishermen are determined by an ancient system of drawing lots, also thought to have been introduced by the Vikings.
FRESHWATER FISH
Definition
Section 24(1) of the 1951 Act defines freshwater fish as:
" "Freshwater fish" means any fish living in fresh water, including trout, and eels and the fry of eels, but exclusive of salmon and of any kind of fish which migrate between the open sea and tidal waters;"
Section 24(1) of the 1951 Act defines trout as:
" "Trout" means non-migratory trout of the species Salmo trutta living in fresh waters or estuaries;"
Ownership of and access to freshwater fishing
Ownership
Private waters
Until captured, freshwater fish are wild animals. Once captured, the fish belongs at common law to the captor. However, the legal right to take such fish as can be captured belongs to the proprietor of the land which is contiguous to the river, stream or loch in which the fish are to be found. Thus, although there is no right of property in the fish before capture, only the proprietor of the lands or those authorised by him, have the right of fishing for them. Except in the case of waters subject to a Protection Order and in the waters entering the Solway, protection of the fishing right depends upon the common law of trespass. The remedy of a proprietor or occupier against an unauthorised fisherman is to order him from the locus, and, in the event of refusal or threatened repetition, to initiate an action of interdict.
The broad principles involved are:
1. No one has any right to trespass upon the lands of another for the purpose of fishing;
2. No one, even if he is lawfully on the bank of a river or loch under a right of access, has the right to fish in the river or loch;
3. Members of the public, having neither title nor right, cannot establish a right by any usage of fishing for however long a period, as against a proprietor having title to the land over which the stream flows.
These are principles of civil law and can be enforced only in civil proceedings.
Apart from in the Solway and where Protection Orders are in force, there is only one case where unauthorised fishing by a trespasser can be made the subject of criminal proceedings, and this is under the Theft Act 1607. The Act applies to an ordinary fish pond, or "stank", enclosed all round where the fish may no longer be said to be feeding in a state of nature. It applies to any artificial pond or reservoir which has been stocked by the owner and which has neither inlet nor outlet. Any person removing trout from a stank without authority from the owner or occupier of the land surrounding it is guilty of theft. It is open to question whether anyone taking fish from an ordinary river or stream which has been stocked is guilty of theft.
In the case of a loch acquired by a Water Authority, a previous owner may reserve rights of fishing but the fishing must not be done in such a way that it will interfere with the purity of the water.
Public waters
Public waters are those which are both navigable and tidal. The tide must ebb and flow at the point where the right is claimed and the right extends up rivers as far as ordinary spring tides.
Fishing for freshwater fish
In general, the only permitted method of fishing for freshwater fish is by rod and line as defined in Section 24(1) of the 1951 Act, as amended by section 8(6) of the 1986 Act. However, under section 2(2) of the 1951 Act, in any pond or loch, where all proprietors agree, a right of fishing for trout by net may be exercised, and in any inland water, a proprietor or occupier having a right of freshwater fishing may take any freshwater fish other than trout by means of a net or trap.
Access
In general, it is not a criminal offence to fish for or take trout in Scotland. However, this does not imply that there is, as some would assert, a free right to fish anywhere. The rights of riparian owners are protected by principles of civil law and permission should be sought before fishing.
There are some differences in relation to waters flowing into the Solway Firth. Section 9 of the Solway Act 1804 (this section is still in force) makes it an offence to fish for salmon or other fish without permission. However, this no longer applies to the River Annan and Border Esk. The 1951 Act is usually used in the case of salmon.
Protection Orders
Protection Orders may be made under the 1976 Act. Section 1 of this Act states that:
"Where Scottish Ministers are satisfied that, if proposals submitted under this section were implemented, there would be a significant increase in the availability of fishing for freshwater fish in inland waters to the which the proposals relate, they may, subject to subsection (3) below, make an order (in this Act referred to as a "protection order");"
Thirteen Protection Orders are currently in force. The locations of the areas covered are shown in the map on page 31.
Principal statutory offences relating to fishing for freshwater fish
1. Where a Protection Order is in operation, it is an offence to fish for or take fish from inland waters in the prescribed area without legal right or written permission from the person having such right. (Freshwater and Salmon Fisheries (Scotland) Act 1976)
2. Where a Protection Order is in operation, it is an offence to contravene any prohibition contained in that order or to attempt to commit such an offence or do any act preparatory to the commission thereof. (Freshwater and Salmon Fisheries (Scotland) Act 1976)
3. Where a Protection Order is in operation, it is an offence to wilfully obstruct or refuse to allow a warden or other authorised person to exercise his statutory powers of enquiry, entry and seizure. (Freshwater and Salmon Fisheries (Scotland) Act 1976)
4. It is an offence to fish for or take freshwater fish in inland waters other than by rod and line. The use of double rod fishing, cross line fishing, set lines, otters, burning the waters etc is unlawful. In any pond or loch where all the proprietors agree, a right of fishing may be exercised by net. In any inland water, a proprietor or occupier having a right of freshwater fishing may take any freshwater fish, other than trout, by means of a net or trap. (Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951)
5. It is an offence to use any poison or other noxious substance with intent to destroy fish or to use any explosive substance for such purpose or to use any electrical device with the intent to stun or destroy fish. (Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951)
6. It is an offence to fish for trout during the annual close time, which is between 7 October and 14 March. This offence and the offence of having trout in possession during the annual close time does not apply to the owner, occupier or lessee of any water where trout are kept in captivity or artificially reared and fed, or any employee there for that purpose, or to any person to whom such fish have been consigned for eg stocking. (Freshwater Fisheries (Scotland) Act 1902, amended by Trout (Scotland) Act 1933)
7. Subject to the above, having trout in possession during the annual close time is an offence. (Freshwater Fisheries (Scotland) Act 1902, amended by Trout (Scotland) Act 1933)
8. It is an offence to purchase or sell or expose or consign for sale or export or consign for exportation any trout between 1 September and 31 March and it is an offence to purchase or sell or expose or consign for sale or export or consign for exportation any trout less than eight inches in length at any time. This does not apply in the case of stocking. (Trout (Scotland) Act 1933)
9. It is an offence to possess non-migratory trout or instruments, poisons or explosives which could be used for taking trout, in circumstances which afford reasonable grounds for suspecting that the accused had obtained possession of such trout or the instruments etc as a result or for the purpose of committing an offence against sections 1-4 of the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951
10. It is an offence for any owner, occupier or lessee of water where trout are kept in captivity and artificially reared and fed to take any trout during the annual close time except for scientific or breeding purposes or for removal to other waters. (Freshwater Fisheries (Scotland) Act 1902, and Trout (Scotland) Act 1933)
11. On the River Tweed, it is an offence for an angler to fail to deliver to the owner of a salmon fishery any salmon inadvertently caught when fishing for brown trout. (Tweed Fisheries Act 1857)
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