Earlier this week, the Herald ran a front page story ‘Justice in secret for skippers that flout laws at sea’.
— HeraldScotland (@heraldscotland) August 12, 2019
The news article focussed on concerns raised after the Scottish Government declined to disclose the identity of vessels given fines for suspected illegal trawling inside Loch Gairloch, an area of inshore seabed known to hold vital habitat for spring spawning herring.
This is an issue we have been following for some time. Reports of illegal fishing in protected areas of Scotland’s seas are sadly all-too-frequent and despite increasing awareness of the problem, it’s still happening. This is in part due to the under-resourcing of fisheries enforcement in Scotland, but also because the legislative regime itself does not effectively deal with – and deter – illegal fishing. Sustainable fishermen, and our environment, are now paying the price: illegal dredging or trawling can entail huge collateral damage to marine wildlife and also compromise the sea’s productivity for other fisheries. Back in 2018, we collaborated with local divers to investigate the seabed after reports of illegal trawling in Loch Gairloch. In July this year, the Scottish Government confirmed that two vessels were issued ‘Fixed Penalty Notices’, each for £2,000 for illegally fishing inside the Gairloch closed area.
Fixed Penalty Notices (FPNs) are essentially a fine which is agreed between the authority (in this case Marine Scotland) and someone suspected of committing an offence. Official guidance is clear that “FPNs should only be issued where there is considered by Marine Scotland Compliance officers to be sufficient evidence to secure a criminal conviction through the courts,” but if a skipper pays up, “no criminal record attaches to acceptance of an FPN and nor is it an admission of guilt.” This means that skippers of fishing companies who are offered FPNs can choose to remain anonymous by paying the fine and avoiding prosecution. The resulting FPN information remains subject to restrictions under the Data Protection Act. However, if such cases were prosecuted, then incidents of suspected illegal fishing would become a matter of public record.
We contend that there are some crimes so serious that they should not be treated by FPN. From Open Seas’ point of view, the ‘naming and shaming’ of skippers is not the end objective. The point is that the current laws, designed to protect the environment and manage fish stocks, are simply not working. There is mounting evidence that FPNs are not effectively deterring illegal scallop dredging and other damaging fishing. Since the FPNs issued in Gairloch, further incidents of illegal dredging have been recorded.
The Herald and other media such as the Ferret and Scottish Legal News have taken a strong interest in this issue. It is part of a broader public policy debate about the need for transparency and open justice when addressing environmental crime.
Our perspective is that the severity of an offence such as trawling over a herring spawning ground, where there is strong evidence of serious environmental harm, merits full public scrutiny via Scotland’s justice system, which in turn would give a more categorical decision of guilt or innocence. It would also mean the identity of the vessel, skipper and fishing company would be a matter of public record, clearing the company’s name or highlighting a public track record of illegal fishing. This would help to inform the wider seafood industry about the risk of illegal seafood in their supply chains.
We acknowledge that FPNs have their place. There are some fishing offences which – whilst significant – are of a more administrative nature (eg first-time ‘misreporting’ in logbooks) and where it is deemed not necessary to mount a full public prosecution. An equivalent would be speeding offences for motorists: there is not a strong justification for publishing the names of everyone who has received penalty points on their driving license (although some people may support that). We also acknowledge that FPNs are designed in part to reduce the risk of costly court cases.
But whilst Fixed Penalty Notices may be a useful tool for dealing with certain categories of administrative offences, when it comes to illegally scallop dredging on a fragile seabed inside a MPA for private commercial gain, why should a skipper be given an option to effectively buy their anonymity? This is backdoor justice, where FPNs are short-circuiting the intended penalties – which are clearly set out by the Marine Scotland Act – for serious environmental crimes and compromising the environmental purpose of Marine Protected Areas. Scottish Ministers have a legal duty to protect MPAs, so they need to implement an effective deterrent.
A prohibited act within a Marine Protected Area carries a possible fine of up to £50,000, reflecting the seriousness of the environmental harm caused. But the current guidance for FPNs does not seem to capture this: the “FPN scheme operates on the principle that, as well as punishing the individual who has committed the alleged offence through a fixed penalty notice, the FPN seeks to address any gain that was made in committing the alleged offence.” A Fixed Penalty Notice can be issued to reflect the potential value of the seafood caught illegally, but what about reflecting the ‘value’ of the environment damaged in the process of that illegal fishing?
We think that transparency is fundamental – if a fishing business is operating in an illegal way that is harming the environment, the public – and consumers – have a right to know. Scotland’s seafood sector relies upon a solid reputation and strong environmental credentials. More transparency will ensure that buyers will know whether they are at risk of unwittingly allowing illegal seafood to enter their supply, the ‘grey fish’ traceability problem we have highlighted in depth. If there is no current way for buyers dependably filter out the risk of illegality in the supply chain, the industry has a very real vulnerability that needs addressed immediately. Some certification schemes attempt to develop processes that provide more supply chain certainty, but if fines for illegal and damaging fishing inside MPAs remain a secret, then how will discerning buyers ever be able to effectively incentivise sustainable seafood?
— Tom Pickerell (@drpickerell) August 12, 2019
We are encouraged that most UK retailers are beginning to support much-needed change in this area. Many organisations have signed up to the Environmental Justice Foundation’s ten principles of transparency – which includes ‘Publish punishments handed out for fisheries crimes.” We are fully supportive of this global initiative and contend that Scotland, with our rich history as a fishing nation, needs to be at the crest of this wave. This should be the start of an urgent shift towards open government and corporate responsibility to protect the long-term interests of the industry and, most fundamentally, the health of marine environment which underpins it.
(Check out the University of Edinburgh’s excellent ‘Saving our Seas Through Law’ briefing series published and produced in collaboration with the Community of Arran Seabed Trust which highlights some of opportunities to enhance the legal framework for protecting the marine environment, covering MPA enforcement alongside a broader range of issues).