Clause 3.—(ILLEGAL FISHING BY TWO OR MORE PERSONS ACTING TOGETHER.) (Hansard, 24 January 1951)

§ Lord Dunglass (Lanark)
I beg to move, in page 2, line 11, to leave out "either of the foregoing sections" and to insert: the last foregoing section. This is really an exploratory Amendment. We want to find out from the Lord Advocate whether, unintentionally, this Clause has been made too harsh. As he will have realised from what we have already accomplished, we feel that those who are subject to the penalties under Clause 1 should be subject to the maximum fine of £10 and also the forfeiture of their gear. On reading Clause 3, however, it would seem that two persons who are committing the offence of fishing without permission might render themselves liable to the maximum fine under Clause 5. I can hardly believe that is intended. If that is not so, why is there no mention of Clause 1? I am sure that there is a satisfactory explanation. It may be that this is a slip and that the penalties are too harsh.

§ The Lord Advocate
The reason why we embrace Clause 1 as well as Clause 2 within the provisions of Clause 3 is this: we might have the case of a gang fishing without legal permission but fishing by legal methods such as the net and coble. The only two legal methods so far as salmon fishing is concerned are either by rod and line or net and coble. If we had a gang using the net and coble method of fishing, although they had not the authority to fish in the area, they might have a very extensive haul, and if they were not brought within the ambit of Clause 3, they would be confined to the limited penalties of Clause 1, which is obviously most undesirable.
We might have two people said to be acting together carrying out a more innocuous form of poaching. That is a consideration which the courts will certainly take into account and, no doubt, impose the appropriate penalty in each case. If we are going out to get the gang, and that is, I think, the purpose accepted on all sides of the Committee and by all responsible persons, we have to recognise that the gangs may be operating without permission but operating by legal methods and, therefore, we want to bring them within the net.

§ Mr. Woodburn
People may be fishing with permission with net and coble. It is rather difficult to see how one can fish with net and coble, even with permission or with a licence, without having two or more persons, and it seems to me that the penalties are necessarily bound up with the question of whether they have permission or not. It seems that the penalties may apply to them even though they are fishing with licence from the authorities or proprietors, but any infringement of the law with regard to net and coble might bring them within rather heavy penalties. That is what causes alarm to legitimate fishermen who earn their livelihood by this method. They feel that they may unintentionally over-step the law and bring themselves within these rather high penalties. May I ask the Lord Advocate whether the question of permission really governs this Clause?

Lord Dung1ass
I think we can accept the Lord Advocate's explanation as being satisfactory. Obviously, the discretion of the courts must be exercised in this matter, and I would be content with that.

§ The Lord Advocate
We are only considering the question of whether or not Clause 1 should be brought within the ambit of Clause 3. That is the only matter on which I am addressing the Committee at present. For the reasons which I have indicated, I think that it is absolutely essential. If it be that people by what they deem to be legal methods actually fish by illegal methods, it is not Clause 1 which we would be considering but Clause 2, and that does not fall within the scope of this particular Amendment. I can assure the noble Lord that the courts do exercise proper discretion in all cases.

§ Mr. Pryde
Clause 3 states: If two or more persons acting together do any act which would constitute an offence against either of the foregoing sections of this Act, every such person shall be liable to the penalties set forth in section five of this Act. If one person does any act which is regarded as an offence, does he come under Clause 5?

§ Mr. Woodburn
May I, without repeating my previous question, ask the Lord Advocate if he can say if there is any 184 distinction made in the case of a fisherman earning his livelihood or whether that will be a matter simply for the discretion of the courts?

§ Mr. N. Macpherson
May I ask whether it was the intention of the Lord Advocate, in presenting this case, to cover the question of early warning or not? Where it is a question of one or two persons taking part in poaching and another person being stationed to give early warning, would that third person come under the Clause? Assuming that the answer is "yes"—I do not know whether it is or not—on the grounds that these three persons were intending to act together from the start, that they were a team and working together, what would be the position of a person who is entirely outside the team that was poaching and who thought it would be a good idea to give warning to them, although he was, in fact, not one of the team? It would be very much more difficult, I think, to bring such a casual warner within the terms of the Clause.

§ The Lord Advocate
I would point out to the hon. Member for Midlothian and Peebles (Mr. Pryde) that if only one person commits an offence under Clause 1 or Clause 2, he does not fall within the ambit of Clause 3. Such a person would be dealt with under Clause 1 or 2, dependent upon which Clause was invoked.
The right hon. Member for East Stirling (Mr. Woodburn) is still worrying about his constituents who might think that they are fishing legally but who, in point of fact, are fishing illegally. We must assume that they are fishing with a legal right but employing methods which, in their hearts, they think legal but which the courts would deem illegal. If the court came to the conclusion that the methods were illegal, a conviction would have to follow. What penalties would be imposed would be a matter for the court, having regard to the circumstances of the case, and, therefore, if it was an honest mistake the right hon. Gentleman need not fear that any dire punishments would be inflicted upon the persons.
The hon. Member for Dumfries (Mr. N. Macpherson) wanted to know about the person who gives warning. The classic case of that is a person who remains in a motor car and switches off and on the 185 lights as a method of giving warning of the approach of the police or water bailiffs. It is not for me to give, in advance, any definition of what the law might be in a particular case, but it is well-known that a person who is ert and part of the commission of an offence is equally guilty of the offence. In the Criminal Justice Act, 1949, we made it clear that this was also part of the law of Scotland so far as statutory law offences were concerned. Accordingly, a person who is stationed to give warning while other people commit an offence would quite clearly be art and part in the commission of that offence.
A good example is a member of a gang stationed outside a house into which housebreakers are breaking. If he has kept watch he is equally guilty of the offence with those who enter the house and commit the crime of housebreaking. So far as the person who is not stationed there to do that is concerned, but who does so, it may be a matter of the circumstances in each case, but if he did it knowingly, knowing that he was assisting in the commission of the offence by giving warning to those who were committing the offence to enable them to go scatheless, in my opinion he could be convicted of being art and part of the commission of the offence.