The Scotland Act 1998 (River Tweed) Order 2006

• Citation: S.I. 2006/2913
• Sections: 105

Section 1 Citation, commencement, application and extent

(1) This Order may be cited as the Scotland Act 1998 (River Tweed) Order 2006.

(2) This Order shall come into force on the day after the day on which it is made.

(3) This Order applies only to the Tweed district.

(4) Part 4 extends only to Scotland and Part 5 extends only to England and Wales.

(5) The amendments contained in Part 1 of Schedule 4 have the same extent as the enactments amended.

Section 2 Definition of the Tweed district

(1) In this Order, “the Tweed district” means the district described in paragraphs (2) to (8).

(2) The coastal limit of the district in the north is high water mark on the boundary between the local government areas of East Lothian and Scottish Borders (“the northern coastal limit”).

(3) The coastal limit of the district in the south is grid reference NU 0783243378 (“the southern coastal limit”).

(4) The district extends landward to include the catchment area of every river which flows directly or indirectly into the sea between the northern coastal limit and the southern coastal limit.

(5) The district includes the southern seaward sector and the northern seaward sector.

(6) The southern seaward sector is the area bounded by—

(a) in the west, a straight line between high water mark on the boundary between Scotland and England and the southern coastal limit;

(b) in the south, a straight line extending 8 kilometres seaward from the southern coastal limit, and at right angles to the line described at sub—paragraph (a);

(c) in the north, a straight line extending 8 kilometres seaward from high water mark on the boundary between Scotland and England, and at right angles to the line described at sub—paragraph (a); and

(d) in the east, a straight line joining the seaward ends of the lines described at sub—paragraphs (b) and (c) (and parallel to the line described at sub—paragraph (a)),

and includes any water lying to the west of the line described in sub—paragraph (a).

(7) The northern seaward sector is the area bounded by—

(a) in the south, the line described at paragraph (6)(c);

(b) in the north, a line extending 8 kilometres seaward from the northern coastal limit, along a bearing of 026 degrees true from that point;

(c) in the west, the line of the coast at high water mark between the northern coastal limit and high water mark on the boundary between Scotland and England; and

(d) in the east, a line between the seaward ends of the lines described at sub—paragraphs (a) and (b), and parallel to the line described in sub—paragraph (c).

(8) The district includes the fishery known as the Holy Island station of the Goswick Fisheries.

Section 3 Definition of Estuary Limits

(1) For the purposes of this Order “estuary limits” means the limits which divide each river including its mouth or estuary from the sea.

(2) The estuary limits of a river shall be the limits fixed and defined—

(a) in relation to the Tweed, by paragraphs (3) and (4); and

(b) in relation to other rivers in the district, by an estuary limits order made under paragraph (5),

and, where no such limits are fixed for a river as provided for in this article, the estuary limits of a river shall be the natural limits which divide a river (including its mouth or estuary) from the sea.

(3) The coastal limits of the estuary of the Tweed are, in the north, high water mark on the boundary between Scotland and England and, in the south, grid reference NU 0483246702.

(4) The estuary limits of the Tweed (which may be referred to as “the Mouth of the Tweed”) are formed by—

(a) in the north, the line described in article 2(6)(c) ;

(b) in the south, a line running from grid reference NU 0483246702, parallel to the line described in article 2(6)(b) , and extending seaward to the line described in article 2(6)(d) ; and

(c) in the east, the straight line between the seaward ends of the lines described in sub—paragraphs (a) and (b).

(5) The Scottish Ministers may, in relation to any other river in the Tweed district, and whether or not any such limits have previously been fixed, by order (in this Order referred to as an “estuary limits order”) prescribe estuary limits for that river.

(6) Paragraphs 1, 2 and 8 to 14 of Schedule 2 shall have effect in relation to the making of an estuary limits order.

(7) Where the estuary limits of any river have been fixed, after consulting the Commission, the Scottish Ministers may, by order, change a reference used in describing estuary limits where the suitability of that reference for that purpose has lessened or ceased; but such an order shall not be an estuary limits order.

Section 4 Interpretation

(1) In this Order, unless the context otherwise requires—

“the 2003 Act ” means the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 ;

“the Tweed Acts ” means the Tweed Fisheries Act 1857 , the Tweed Fisheries Amendment Act 1859 , and the Tweed Fisheries Act 1969 c. xxiv ;

“annual value” means the annual rental value of a specified salmon fishery as entered in the valuation roll;

“boat” includes any craft or vessel used in fishing;

“clerk” means the clerk to the Commission;

“The Commission” has the meaning given in article 5 and “Commissioners” shall be construed accordingly;

“dam” means any weir, dam, dyke, cauld, mill dam or other structure constructed in the bed of any stream, river or loch for the purpose of controlling, impounding or diverting water therefrom;

“Environment Agency” has the meaning given by section 1 of the Environment Act 1995 ;

“estuary limits” has the meaning given in article 3 ;

“fish farm” has the meaning given in section 10(1) of the Diseases of Fish Act 1937 ;

“fixed engine” means any engine, net or trap used for the taking of salmon, other than a sweep net which when in use is hauled through the water continuously and is not allowed to be stationary in the water or to drift with the current;

“foul hooking” means any method of deliberately hooking or attempting to hook a fish other than by inducing the fish to take the hook in its mouth;

“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 fish which migrate between the open sea and tidal waters;

“inland waters” includes all rivers above estuary limits and their tributary streams, and all waters, watercourses and lochs whether natural or artificial which drain or drain to some extent into the sea;

“justice” and “justices” means a justice of the peace or two or more justices of the peace acting for the county, city or place where the matter requiring action by such justice or justices arises;

“lade” includes any artificial channel through which water is diverted from any inland water in which salmon or trout are present;

“land” includes land covered by water;

“package” includes any box, basket, barrel, case, receptacle, sack, bag, container, wrapper or other thing in which salmon or trout is placed for the purpose of carriage, consignment or exportation;

“prescribed” means prescribed by an order made by the Scottish Ministers under this Order;

“proprietary Commissioner” means a person who is a Commissioner by virtue of having been elected as a Commissioner under article 6 , or who has been deemed as such under article 5(7);

“proprietor” means any person, partnership, company or corporation which is the proprietor of a salmon fishery or which receives or is entitled to receive the rents of such fishery on its own account or as trustee, guardian or factor for any person, company or corporation;

“representative Commissioner” has the meaning given in article 7;

“rod and line” has the meaning given in article 25 ;

“salmon” means all fish of the species Salmo salar and migratory fish of the species Salmo trutta and commonly known as salmon and sea trout respectively or any part of any such fish;

“salmon fishery district” has the meaning given in section 34 (salmon fishery districts) of the 2003 Act;

“specified salmon fishery” means a salmon fishery in the district—

of an annual value of not less than £30; or

which extends to 800 metres in length where such fishery is on one side only of a river or 400 metres in length where such fishery comprehends both sides of a river; or

the proprietor of which has elected, by notice in writing to the Commission, that he wishes the fishery to be treated as a salmon fishery of an annual value of £30;

“treasurer” means the treasurer to the Commission;

“trout” means non—migratory trout of the species Salmo trutta living in fresh waters or in estuaries;

“the Tweed district” has the meaning given in article 2(1) , and “district” shall be construed accordingly;

“valuation roll” means the valuation roll prepared by the Commission under article 16;

“vehicle” means any conveyance other than a vehicle used for the purposes of a public passenger transport service within the meaning given in section 63(10) of the Transport Act 1985 ;

“water bailiff” means any person appointed as such by—

the Commission under article 11(1)(b); or

by the Scottish Ministers under article 59(5) .

(2) References to an occupier of a right of fishing for freshwater fish are references to a person who is in possession of that right as tenant under a lease of land to which such a right pertains or under a contract which by virtue of article 73 is deemed to be a lease and, for the purposes of this paragraph “tenant” and “lease” include “subtenant” and “sublease” respectively.

Section 5 The River Tweed Commission

(1) There shall be a body corporate to be known as the River Tweed Commission, (“the Commission”).

(2) The Commission shall comprise—

(a) every proprietor of a specified salmon fishery who has been elected as a proprietary Commissioner in accordance with article 6; and

(b) every person appointed as a representative Commissioner in accordance with article 7.

(3) Property may be held by the Commission in the name of the River Tweed Commission.

(4) Any property, rights or powers held or obligations incumbent upon the Commissioners appointed under the Tweed Acts whether by, under or by virtue of any enactment, rule of law or otherwise shall be transferred to and held by, or as the case may be incumbent upon, the Commission.

(5) Any interest of the Commissioners in any civil proceedings pending before any court or tribunal immediately before the date on which this Order comes into force shall on that date transfer to, and be exercisable by, the Commission.

(6) The Commission may sue or be sued in the name of the clerk or, in the absence of the clerk, of any three named Commissioners.

(7) Proprietary Commissioners holding office as members of the council under section 6 of the Tweed Fisheries Act 1969 shall become proprietary Commissioners under article 6 from the date on which this Order comes into force until the first election held under article 6.

(8) Representative Commissioners appointed under section 5 of that Act shall continue in office from the date on which this Order comes into force as if appointed under article 7.

Section 6 Election of Proprietary Commissioners

(1) On or before the first Monday in March in each year, a meeting of the proprietors of specified salmon fisheries shall be held within the former burgh of Kelso or at such other place within the district as the Commission may decide for the purpose of electing thirty—eight of their number as proprietary Commissioners.

(2) At every such meeting—

(a) the proprietors present shall elect one of their number to be the convener; and

(b) each proprietor present shall have one vote, except that in the case of an equality of votes the convener shall be entitled to a second or casting vote.

(3) Each person elected in accordance with the provisions of paragraph (1) shall hold office as a proprietary Commissioner for the ensuing year unless that person shall previously die, resign, become disqualified or otherwise cease to be a proprietor.

(4) If any vacancy shall arise in the office of a proprietary Commissioner the remaining proprietary Commissioners shall select a proprietor of a specified salmon fishery to fill the vacancy and the person so selected shall be entitled to hold office as a proprietary Commissioner so long only as the Commissioner in whose stead that person is elected would have been entitled to have continued in office.

(5) For the purposes of this article, “proprietor” includes not more than one person authorised by—

(a) in the case of a fishery in which more than one person has a pro indiviso share, such persons; or

(b) in the case of a fishery in which the rights to that fishery are shared by more than one person in any other way, such persons,

but in neither case does it include, except by virtue of this paragraph, a person whose right to that fishery is so shared.

Section 7 Representative Commissioners

(1) Each of the local authorities specified in column 1 of Schedule 1 shall appoint the respective number of representatives specified in column 2 of that Schedule to act as representative Commissioners for the purposes of this Order, and each such Commissioner shall hold office from the date of appointment until the period of appointment ends, or that person shall die, resign, become disqualified or otherwise cease to be a Commissioner.

(2) A person appointed to act as a representative Commissioner by a local authority need not be a member or officer of the local authority by whom that representative is appointed.

(3) The representatives appointed as Commissioners by a local authority shall be persons appearing to the local authority to be persons sufficiently representing the interests of those respective parts of the area of that local authority as are specified in column 3 of Schedule 1, and the number of persons appointed in respect of each part so specified shall be in accordance with the respective numbers specified in column 4 of that Schedule.

(4) Of the representatives appointed in respect of each specified part of the area of a local authority, the respective number specified in column 5 of Schedule 1 shall be persons appearing to the local authority to be persons sufficiently representing the interests of freshwater fishing associations or clubs within that part.

(5) If any vacancy shall arise in the office of a representative Commissioner, the local authority in whom the appointment is vested shall as soon as practicable appoint another person to act as a Commissioner.

(6) All appointments under this article shall be made in writing and may be for such period as the local authority in whom the appointment is vested determines.

Section 8 Chief Commissioner and Deputy

(1) Subject to paragraph (2) at every annual general meeting the Commission shall elect a Chief Commissioner and a deputy from among its number and the persons so elected shall hold office until the next ensuing annual general meeting.

(2) If any vacancy occurs in the office of Chief Commissioner or deputy before the expiration of that person’s term of office the Commission shall, as soon as practicable, hold an ordinary meeting for the purpose of filling such vacancy.

(3) The Chief Commissioner or, in the Chief Commissioner’s absence, the deputy shall preside at all meetings of the Commission.

(4) Where neither the Chief Commissioner nor the deputy is present at a meeting, a Commissioner elected by the meeting shall preside at that meeting.

Section 9 Functions of the Commission

The Commission may do such acts, execute such works and incur such expenses as may appear to it expedient for—

(a) the protection or improvement of the salmon and freshwater fisheries in the district;

(b) the preservation and increase of salmon and freshwater fish in the district; and

(c) the stocking of the district with salmon and freshwater fish.

Section 10 Application of the seal

(1) The Commission shall have a seal.

(2) The application of the seal of the Commission shall be authenticated by the clerk or, in the absence of the clerk, by any three Commissioners named by the Commission for this purpose.

(3) Any document which the Commission is authorised or required by or under any enactment to make or issue may be signed on behalf of the Commission by the clerk or any other officer who has been authorised for the purpose, whether generally or specifically, by the Commission or, in the absence of such authorised clerk or officer, by any three Commissioners, named by the Commission for this purpose.

(4) Every document purporting to be an instrument made or issued by or on behalf of the Commission and to be duly executed under the seal of the Commission, or to be signed or executed by a person authorised by the Commission for the purpose, shall be received in evidence and be treated, without further proof, as being so made or issued unless the contrary is shown.

(5) Any notice which is required or authorised, by or under any provision of any enactment or Act of the Scottish Parliament, to be given, served or issued by, to or on the Commission shall be in writing.

Section 11 Officers and employees

(1) On such terms and conditions as it thinks fit, the Commission—

(a) shall appoint a clerk to the Commission;

(b) shall appoint a superintendent of water bailiffs, together with such other water bailiffs as it thinks fit;

(c) may appoint a treasurer to the Commission; and

(d) may appoint such other persons to act in such capacities as it thinks fit.

(2) No person may hold the offices of clerk and treasurer at the same time.

(3) A person who is employed in any capacity by the Commission shall, for so long as that person is so employed, be disqualified from acting or voting as a Commissioner, or from representing or voting for any Commissioner, at any meeting of the Commission.

(4) Any person employed, immediately before the date on which this Order comes into force, by the Commissioners appointed under the Tweed Acts is transferred on that date to the employment of the Commission.

(5) The contract of employment of any person transferred under paragraph (4)—

(a) is not terminated by the transfer; and

(b) has effect from the date of transfer as if originally made between that person and the Commission.

Section 12 Meetings of the Commission

(1) The Commission shall hold an annual general meeting on the first Monday in March or as soon thereafter as practicable every year.

(2) The Commission may hold such ordinary meetings as it may from time to time determine.

(3) The clerk of the Commission shall, on a requisition by any three Commissioners (of whom one must be the Chief Commissioner or the deputy Chief Commissioner) convene a special meeting.

(4) The requisition must state the objects of the meeting and must be signed by the requisitionists.

(5) No special meeting shall be called at less than 48 hours’ notice.

(6) All meetings of the Commission shall be held within the former burgh of Kelso or at such other place within the district as it may decide.

Section 13 Quorum at Commission meetings

The Commission shall fix the quorum for any of its meetings at such number, not being less than 9, as it may determine.

Section 14 Votes at Commission meetings

(1) Every member of the Commission present at any meeting of the Commission shall have one vote, except that, in the case of an equality of votes, the person presiding shall be entitled to a second or casting vote.

(2) All questions arising at any meeting of the Commission shall be decided by a majority of the votes cast by the Commissioners present at the meeting.

(3) It shall be lawful for every Commissioner from time to time to nominate, by instrument in writing under that Commissioner’s hand, a person to be proxy for, and represent and act for that Commissioner at any meeting or meetings of the Commission, and the person so nominated shall be entitled, in the absence of the nominating Commissioner, to vote at the meeting or meetings of the Commission for that Commissioner.

(4) No act or proceeding of the Commission shall be questioned on account of any vacancy in its membership and no defect in the qualification or appointment of any person acting as a Commissioner shall vitiate any proceedings of the Commission in which that Commissioner has taken part.

(5) The minutes of any meeting of the Commission shall be signed by the Commissioner presiding at the meeting and shall be conclusive evidence of the proceedings; and a meeting so minuted shall be presumed to have been duly convened and held and all Commissioners present to have been duly qualified.

Section 15 Expenses

(1) The Commission may defray any travelling or other expenses reasonably incurred by a Commissioner in carrying out any duties on behalf of the Commission.

(2) Any expenses defrayed under paragraph (1) shall not include expenses for attending any meeting of the Commission.

Section 16 Valuation

(1) The Commission shall, not less frequently than every five years, determine the annual value of each salmon fishery in the district, and shall—

(a) enter that valuation in a valuation roll to be maintained by it for that purpose; and

(b) intimate the determination to the proprietor or occupier of the salmon fishery concerned.

(2) Any proprietor aggrieved by a determination made under paragraph (1) may, within ten days of receipt of the determination, appeal against that determination to the sheriff or justices, and shall at the same time intimate any such appeal to the clerk.

(3) A sheriff or justice who sustains an appeal made under paragraph (2) shall determine the value of the fishery in question, and the Commission shall adjust the entry in respect of that fishery accordingly.

Section 17 Information for valuation

(1) The Commission shall have power to collect such information as it considers necessary for the purpose of valuing any salmon fishery in the district and to require any proprietor or occupier of a salmon fishery to furnish it with such information in such form and at such times as it may determine.

(2) The Commission may use any information collected under paragraph (1) for the purposes of carrying out its functions under article 9.

(3) Any proprietor or occupier of a fishery who wilfully refuses to comply with any requirement made in pursuance of this article or makes any statement in relation to such a requirement which is false in a material particular shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(4) The Scottish Ministers may make available to the Commission for the purposes of valuations under this article any information collected by them under article 21 insofar as such information relates to fisheries in the district.

Section 18 Fishery Assessment

(1) The Commission shall have power to impose an assessment to be known as the fishery assessment on each specified salmon fishery in the district.

(2) The fishery assessment shall be assessed at such uniform rate as is determined for all specified salmon fisheries in the district by the Commission and shall be exigible according to the valuation as entered in the valuation roll.

(3) The Commission shall intimate a notice of assessment made under paragraph (1) to the proprietor or occupier of a specified salmon fishery.

Section 19 Enforcement

(1) Proceedings for the recovery of money owed to the Commission in respect of arrears of fishery assessment may be taken before the court having jurisdiction over—

(a) the area in which the fishery is situated; or

(b) the place where the debtor lives or is found.

(2) The powers under paragraph (1) to recover arrears of fishery assessment include power to recover interest, chargeable at such rate asthe Scottish Ministers may determine on such arrears from, in the case of recovery of arrears which have been outstanding for at least 3 months from the date of issue of a notice of assessment, that date until payment or the commencement of an action for payment, whichever is the earlier.

Section 20 Annual report

Each year, the Commission shall prepare—

(a) a general report of its activities over the past year; and

(b) a statement of accounts, which shall be audited,

and the clerk shall call a meeting of the proprietors of specified salmon fisheries for the purposes of considering the report and the audited accounts.

Section 21 Power to conduct inquiries and to obtain information

(1) For the purpose of protecting and developing stocks of salmon and freshwater fish in the Tweed district the Scottish Ministers and the Commission shall have power, jointly or severally, to conduct inquiries and investigations into questions of practical or scientific importance to salmon and freshwater fisheries; and for such purpose to enter on and conduct such operations as may be necessary in any fishery in the Tweed district, provided always that no damage shall be done to such fishery and that no interference shall be caused to the rights of the owner or occupier of such fishery.

(2) The Scottish Ministers shall have power—

(a) to collect such statistics relating to the number of salmon caught in any salmon fishery and the species, description and weight, and method and date of capture of such salmon as they may consider necessary, and to require any proprietor or occupier of a salmon fishery to furnish them with such statistics relating to such matters in such form and at such times as they may determine; and

(b) to publish such statistics in such manner as they think fit.

(3) Any proprietor or occupier of a fishery who wilfully refuses to comply with any requirement made in pursuance of this article, or makes any statement in relation to such a requirement which is false in a material particular, shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Section 22 Methods of fishing: salmon

(1) Any person who fishes for or takes salmon in any inland waters, except by—

(a) rod and line; or

(b) net and coble,

shall be guilty of an offence.

(2) Any person who fishes for or takes salmon in any waters other than inland waters except by—

(a) rod and line;

(b) net and coble; or

(c) bag net, fly net or other stake net,

shall be guilty of an offence.

(3) Any person who attempts to commit or who does any act preparatory to the commission of an offence mentioned in this article shall be guilty of an offence, and liable to the same punishment as if that person had committed the offence mentioned.

(4) For the purposes of this article “net and coble” and “bag net, fly net or other stake net” shall be construed in accordance with any orders made under article 52(4) .

(5) A person found guilty of an offence under this article shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.

Section 23 Methods of fishing: freshwater fish

(1) Subject to paragraphs (3) and (4), any person who fishes for or takes freshwater fish in any inland waters except by rod and line shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(2) Any person who attempts to commit or who does any act preparatory to the commission of the offence mentioned in paragraph (1) shall be guilty of an offence, and liable to the same punishment as if that person had committed the offence mentioned.

(3) In any pond or loch where all the owners are agreed, a right of fishing may be exercised by net.

(4) In any inland waters an owner or occupier may fish for or take freshwater fish, other than trout, by net or trap.

Section 24 Use of landing net

For the purposes of articles 22 and 23 , it shall be prohibited to use any instrument other than a landing net as auxiliary to the taking of fish by rod and line.

Section 25 Definition of “rod and line”

(1) In this Order “rod and line” means single rod and line (used otherwise than as a set line or by way of foul hooking) with such bait or lure as is not prohibited by this article or, in relation to fishing for salmon, under article 53 or 54(5)(b).

(2) It is prohibited to use fish roe, fire or light as bait or lure.

Section 26 Prohibition against using explosive and other noxious substances for the destruction of fish

(1) Any person who—

(a) uses any explosive substance with intent to take or destroy fish in any waters;

(b) puts any poison or other noxious substance in or near any such waters with intent to take or destroy fish; or

(c) uses any electrical device with intent to stun or destroy salmon or freshwater fish in any such waters,

shall be guilty of an offence.

(2) Any person who attempts to commit or who does any act preparatory to the commission of an offence mentioned in paragraph (1) shall be guilty of an offence, and liable to the same punishment as if that person had committed the offence mentioned.

(3) A person found guilty of an offence under this article shall be liable—

(a) on summary conviction to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding 3 months or to both such fine and such imprisonment; and

(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 2 years or to both a fine and such imprisonment.

Section 27 Fishing for salmon without right or permission

(1) Any person who 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 1.5 kilometres of mean low water springs, shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(2) Any person who attempts to commit or who does any act preparatory to the commission of the offence mentioned in paragraph (1) shall be guilty of an offence, and liable to the same punishment as if that person had committed the offence mentioned.

Section 28 Illegal fishing by two or more persons acting together

If two or more persons acting together do any act which would constitute an offence against article 22 , 23 or 27 , every such person shall be guilty of an offence under this article, and liable—

(a) on summary conviction to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding 3 months or to both such fine and such imprisonment; and

(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 2 years or to both a fine and such imprisonment.

Section 29 Taking of dead fish

(1) Without prejudice to section 3 of the Diseases of Fish Act 1937 (powers and duties of fishery boards) , any person other than—

(a) a constable or a water bailiff in the exercise of their respective duties;

(b) a person authorised in that regard by the Scottish Ministers or the Commission; or

(c) a person with a right to fish therein or the agent of any such person,

who takes or removes dead fish from any waters, including any part of the sea within 1.5 kilometres of mean low water springs, shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(2) Any person who attempts to commit or who does any act preparatory to the commission of the offence mentioned in paragraph (1) shall be guilty of an offence, and liable to the same punishment as if that person had committed the offence mentioned.

Section 30 Illegal possession of salmon or trout

(1) Any person who is found in possession of any salmon or trout, or any instrument, explosive, poison or other noxious substance which could be used in the taking of salmon or trout, in circumstances which afford reasonable ground for suspecting that that person has obtained possession of such salmon or trout, or such instrument, explosive, poison or substance as the result or for the purpose of committing an offence against any of the provisions of articles 22 , 23 , 26 , 27 , and 28 , may be charged with unlawful possession as aforesaid of such salmon or trout, or of such instrument, explosive, poison or substance.

(2) Where the court is satisfied that a person charged under paragraph (1) obtained possession of salmon or trout, or of any instrument, explosive, poison or other noxious substance as the result or for the purpose of committing an offence against any of the provisions of articles 22 , 23 , 26 , 27 and 28 , that person may be convicted of unlawful possession as aforesaid and dealt with in like manner as if that person had been convicted of the same offence.

(3) A person who commits an offence under this article may be convicted on the evidence of one witness.

Section 31 Removal of obstructions

(1) If a natural obstruction is preventing or obstructing the free passage of salmon or freshwater fish, the owner or occupier of the land or fishery in or upon which the obstruction is shall, within 14 days of being requested to do so in writing by the clerk or any two Commissioners authorised in that behalf by the Commission, remove or alter the obstruction so as to allow the free passage of fish at all times.

(2) If the owner or occupier of the land or fishery referred to in paragraph (1) fails to remove or alter the obstruction, the Commission may order that such obstruction be removed or altered under the direction of a person to be appointed by the Commission and at the expense of the Commission.

(3) The removal or alteration of an obstruction under paragraph (2) shall be carried out so as to cause the least possible injury to the property in question.

Section 32 Offences in relation to passage of salmon

(1) Any person who does any act for the purpose of preventing salmon from passing through any fish pass, or taking any salmon in its passage through the same, shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(2) Any person who attempts to commit or who does any act preparatory to the commission of any offence mentioned in paragraph (1) shall be guilty of an offence, and liable to the same punishment as if that person had committed the offence mentioned.

(3) A person who commits an offence under this article may be convicted on the evidence of one witness.

Section 33 Fishing in waters where fishing rights owned by one person

(1) 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.

(2) For the purposes of this article—

“proper stank or loch” means a stank or loch the fishing rights in which are owned by one person; and

“stank” means a reservoir or pond with neither inlet nor outlet sufficient to allow access or egress by fish.

Section 34 Contravention of protection order

(1) Any person who fishes for or takes freshwater fish in contravention of a prohibition contained in a protection order made under article 68 shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(2) Any person who attempts to commit or who does any act preparatory to the commission of the offence mentioned in paragraph (1) shall be guilty of an offence and liable to the same punishment as if that person had committed the offence mentioned.

Section 35 Weekly close time for salmon

(1) The weekly close time for salmon fishing shall be such period of not less than 42 hours, including the whole of Sunday, as may be prescribed.

(2) No person shall fish for or take salmon during Sunday.

(3) No person shall fish for or take salmon during the weekly close time but, subject to paragraph (2), an order under this article may make provision for periods within the weekly close time during which it is permitted to fish for and take salmon by rod and line.

(4) Any person who contravenes this article shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(5) A person who commits an offence under this article may be convicted on the evidence of one witness.

Section 36 Annual close time for salmon

(1) Subject to the provisions of this article, the annual close time for salmon fishing—

(a) shall be such continuous period of not less than 153 days as may be prescribed by an order (to be known as an “annual close time order”) under this article; and

(b) shall apply to every mode of fishing for and taking salmon.

(2) An annual close time order may make provision for periods within the annual close time during which it is permitted to fish for and take salmon by rod and line (but only with the artificial fly).

(3) Paragraphs 3, 4 and 8 to 14 of Schedule 2 shall have effect in relation to the making of orders under this article.

Section 37 Fishing for salmon during annual close time

(1) Subject to paragraph (2), any person who fishes for or takes salmon during the annual close time within the meaning of article 36 shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(2) It shall not be an offence to fish for or take salmon by means of rod and line, with the artificial fly only, at any period within the annual close time when such fishing is permitted by the orders in force in the part of the district in which the fishing occurs.

(3) Any person who attempts to commit or who does any act preparatory to the commission of any offence mentioned in paragraph (1) shall be guilty of an offence, and liable to the same punishment as if that person had committed the offence mentioned.

(4) A person who commits an offence under this article may be convicted on the evidence of one witness.

Section 38 Removal of boats and nets during annual close time

(1) The proprietor or occupier of any salmon fishery shall within 36 hours after the commencement of the annual close time—

(a) remove and carry from such fishery, and from the landing places and grounds adjacent thereto, all boats, oars, nets, engines and other tackle used or employed by such occupier in taking salmon; and

(b) effectually secure the same so as to prevent their being used in fishing until the end of the close time,

with the exception of such boats and oars as may be used in angling.

(2) Any proprietor or occupier who fails to comply with the duty imposed by paragraph (1) shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(3) A person who commits an offence under this article may be convicted on the evidence of one witness.

(4) Nothing in this article applies to—

(a) any ferry—boat or prevents the continued use of any boat by any owner of land adjoining the river or the owner’s family, if the boat has the owner’s name painted on it, and is secured, when not in use for lawful purposes, by lock and key;

(b) the pins fixed in the ground to assist in the support of the stakes or poles of fly nets or other stake nets; or

(c) the fastenings fixed in rocks for the support of bag nets.

Section 39 Buying and selling salmon in annual close time

(1) Any person who buys, sells, exposes for sale or is in possession of any salmon within the district during the period when the annual close time is in force in the district, shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(2) It shall be a defence to a prosecution brought under this article for the accused to prove that the salmon was caught lawfully.

(3) The burden of proving that any salmon was caught lawfully shall lie on the person charged with selling, exposing for sale or being in possession of, the salmon.

(4) A person who commits an offence under this article may be convicted on the evidence of one witness.

Section 40 Annual close time for trout

(1) The annual close time for trout shall extend from 7th October to 14th March, both inclusive.

(2) Subject to paragraphs (3) and (4), any person who, during the annual close time—

(a) fishes for or takes trout in any inland waters; or

(b) is in possession of trout from any inland water,

shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(3) It shall not be an offence under this article for the owner or occupier of any water where trout are kept in captivity or artificially reared or fed, or any person employed by such an owner or occupier, to take trout from such water during the annual close time—

(a) for scientific or breeding purposes; or

(b) for the purpose of removing them or having them removed, alive, to other waters.

(4) It shall not be an offence under this article for a person to whom trout are consigned, whether by sale or otherwise, for the purpose mentioned in paragraph (3)(b), to be in possession of such trout.

Section 41 Unclean salmon

(1) Any person who—

(a) wilfully takes or fishes for; or

(b) buys, sells, exposes for sale or is in possession of,

any unclean or unseasonable salmon shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(2) Paragraph (1)(a) does not apply to any person who takes such salmon accidentally and forthwith returns it to the water with the least possible injury.

(3) Any person who attempts to commit or who does any act preparatory to the commission of any offence mentioned in paragraph (1)(a) shall be guilty of an offence, and liable to the same punishment as if that person had committed the offence mentioned.

(4) A person who commits an offence under this article may be convicted on the evidence of one witness.

Section 42 Salmon roe

(1) Any person who buys, sells, exposes for sale or is in possession of any salmon roe shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(2) Paragraph (1) shall not apply to any person who gives a reason, satisfactory to the court before which that person is charged, for being in possession of salmon roe.

(3) It shall be a defence for a person charged with an offence under paragraph (1) to prove—

(a) that the roe had been produced in the course of fish farming; or

(b) that that person believed on reasonable grounds that it had been so produced.

(4) A person who commits an offence under this article may be convicted on the evidence of one witness.

(5) Paragraph (3) is without prejudice to the provisions of paragraph (2) relating to the circumstances in which paragraph (1) does not apply.

(6) For the purposes of this article “fish farming” means the breeding, rearing or cultivating of fish, whether or not for the purpose of producing food for human consumption; but the reference to roe produced by fish farming does not include roe from fish bred, reared or cultivated in captivity which have later been released into the wild.

Section 43 Possessing salmon which have been illegally taken, killed or landed

(1) Any person who—

(a) is in possession of salmon and believes; or

(b) is in possession of salmon in circumstances in which it would be reasonable for that person to suspect,

that a relevant offence has at any time been committed in relation to the salmon shall be guilty of an offence.

(2) A person found guilty of an offence under this article shall be liable—

(a) on summary conviction to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding 3 months or to both such fine and such imprisonment; and

(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 2 years or to both a fine and such imprisonment.

(3) It shall be a defence in proceedings for an offence under this article to show that no relevant offence had in fact been committed in relation to the salmon.

(4) A person who commits an offence under this article may be convicted on the evidence of one witness.

(5) For the purposes of this article an offence is a relevant offence in relation to a salmon if—

(a) it is committed by taking, killing or landing that salmon, either in Scotland or in England and Wales; or

(b) that salmon is taken, killed or landed, either in Scotland or in England and Wales, in the course of the commission of the offence,

and, for the purposes of this paragraph, “offence”, in relation to the taking, killing or landing of salmon either in Scotland or in England and Wales, means an offence under the law applicable to the place where the salmon is taken, killed or landed.

(6) A person shall not be guilty of an offence under this article in respect of conduct which constitutes a relevant offence in relation to any salmon, or in respect of anything done in good faith for purposes connected with the prevention or detection of crime or the investigation or treatment of disease.

Section 44 Packages of salmon or trout to be marked

(1) Any person who consigns or sends by any common or other carrier any salmon or trout in a package which is not marked conspicuously on the outside with—

(a) the word “salmon” or “sea trout” or, as the case may be, “trout”; and

(b) the name and address of the sender,

shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(2) An authorised person may open any package consigned or sent or brought to any place to be consigned or sent, and suspected to contain salmon or trout.

(3) Where a package opened under paragraph (2) is found to contain salmon or trout and—

(a) the package is not marked as described in paragraph (1); or

(b) there is reasonable cause to suspect that salmon or trout contained in any package so marked is being dealt with contrary to law,

an authorised person may detain the package and its contents pending proceedings for an offence against any provision of this Order.

(4) If, before the conclusion of such proceedings as are mentioned in paragraph (3), any salmon or trout detained under that paragraph becomes unfit for human consumption, any authorised person may destroy it, or cause it to be destroyed.

(5) Any person who—

(a) refuses to allow an authorised person to exercise a power conferred by this article; or

(b) obstructs any authorised person in the exercise of a power so conferred,

shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(6) For the purposes of this article an “authorised person” means—

(a) any constable;

(b) any water bailiff; or

(c) any person appointed for the purposes of this article by the Scottish Ministers.

Section 45 Size limit for trout

(1) Subject to paragraph (2), any person who purchases, sells, exposes for sale, consigns for sale, exports or consigns for export—

(a) trout under 20 centimetres in length; or

(b) any trout at any time between 1st September and 31st March both inclusive,

shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(2) Nothing in this article shall apply to live trout sold or disposed of for the purpose of stocking any river, loch or water, or for artificial propagation.

Section 46 Young salmon and spawning beds

(1) Any person who—

(a) knowingly takes, injures or destroys;

(b) buys, sells, exposes for sale or is in possession of; or

(c) places any device or engine for the purpose of obstructing the passage of,

any smolt, parr, salmon fry or alevin shall be guilty of an offence.

(2) Any person who knowingly—

(a) injures or disturbs any salmon spawn; or

(b) disturbs any spawning bed or any bank or shallow in which the spawn of salmon may be,

shall be guilty of an offence.

(3) Any person who during the annual close time obstructs or impedes salmon in their passage to any such bed, bank or shallow shall be guilty of an offence.

(4) Notwithstanding paragraphs (1) to (3) and subject to paragraph (5), the Commission may, with the consent of all the proprietors of salmon fisheries in any river or estuary, adopt such means as it thinks fit for preventing the ingress of salmon into narrow streams in which they or the spawning beds are from the nature of the channel liable to be destroyed.

(5) Nothing done under paragraph (4) may interfere with any water rights used or enjoyed for the purposes of manufacture, agriculture or drainage.

(6) Any person who attempts to commit or who does any act preparatory to the commission of any offence mentioned in paragraph (1), (2) or (3) shall be guilty of an offence, and liable to the same punishment as if that person had committed the offence mentioned.

(7) A person who commits an offence under this article may be convicted on the evidence of one witness, and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(8) This article is without prejudice to any powers exercisable by or on behalf of the Environment Agency under the Water Resources Act 1991 or the Land Drainage Act 1991 .

Section 47 Unauthorised introduction of fish or fish eggs into certain waters

(1) A person who intentionally introduces any fish or the eggs or spawn of fish into inland waters shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 2 on the standard scale.

(2) A person shall not be guilty of an offence under this article in respect of the introduction of fish or the eggs or spawn of fish into such waters if—

(a) the Commission has previously consented in writing; or

(b) the waters constitute or are included in a fish farm.

Section 48 Exemption from certain offences of acts done for scientific and other purposes: salmon

(1) A person shall not, in respect of any act or omission relating to salmon or salmon roe or eggs, be guilty of a contravention of an enactment prohibiting or regulating that act or omission if—

(a) the act or omission is for—

(i) some scientific purpose;

(ii) the purpose of protecting, improving or developing stocks of fish;

(iii) the purpose of conserving any creature or other living thing;

(iv) the purpose of cleaning or repairing any dam or mill lade; or

(v) the purpose of exercising any right of property in the bed of any river or stream; and

(b) that person has obtained the previous permission, in writing—

(i) if the act or omission is one to which this sub—paragraph applies, of the Commission or of the Scottish Ministers; and

(ii) in any other case, of the Scottish Ministers,

for the act or omission.

(2) Paragraph (1)(b)(i) applies if the act or omission referred to in that provision is a contravention of article 22 , 26(1)(c) , 28 (so far as that article relates to article 22), 29, 30, 41 , 42 or 46 .

(3) A permission under paragraph (1) shall specify the act or omission permitted and the enactment to which the permission relates.

Section 49 Exemption from certain offences in respect of acts done for scientific and other purposes: fish other than salmon

(1) A person shall not be guilty of any contravention of a provision specified in paragraph (2) in respect of any act in relation to fish other than salmon, if—

(a) the act or omission is for—

(i) some scientific purpose;

(ii) the purpose of protecting, improving or developing stocks of fish; or

(iii) the purpose of conserving any creature or other living thing; and

(b) that person has obtained the previous permission, in writing—

(i) if the act or omission is one to which this sub—paragraph applies, of the Commission or of the Scottish Ministers; and

(ii) in any other case, of the Scottish Ministers.

(2) Paragraph (1)(b)(i) applies if the act or omission referred to in that provision is a contravention of article 23 , 26 (1)(c), 28 (so far as it relates to article 23), 29 , 30 , 40 or 45 .

(3) A permission under paragraph (1) shall specify the act or omission permitted and the provision to which the permission relates.

Section 50 Exemption from certain offences in respect of certain acts in relation to salmon

(1) A person shall not, in respect of any act or omission relating to fishing for or taking salmon, be guilty of a contravention of an enactment prohibiting or regulating that act or omission if the act or omission has been exempted by the Scottish Ministers.

(2) The Scottish Ministers may exempt an act or omission under paragraph (1) only if they are satisfied that—

(a) the proprietor of every affected salmon fishery in the district; and

(b) the Commission,

have previously consented to it.

(3) In paragraph (2) “affected” means appearing to the Scottish Ministers to be likely to be affected by the exemption.

(4) An exemption under this article—

(a) may relate only to such person as may be specified in it;

(b) may be subject to such conditions as may be so specified;

(c) shall be in writing; and

(d) shall specify—

(i) the limits of the waters to which it relates;

(ii) its duration; and

(iii) the enactment to which it relates.