POWERS OF SEA-FISHERY OFFICERS (Hansard, 5 June 1984)

§ Mr. Wallace
I beg to move amendment No. 17, in page 4, line 29, at end insert `after obtaining a warrant from the Sheriff or a Justice of the Peace.'.
Clause 5 confers upon sea fishery officers wide powers of search, which would not be available to police officers conducting a murder investigation. Although we have considerable reservations about the extent of the powers, we recognise that in many cases other subsections are necessary because they deal with events that take place at sea.
The amendment relates to powers exercised by officers under clause 5(7) and provides that before they search premises they should have obtained a search warrant from a sheriff or justice of the peace.
At common law, no one can have his premises searched unless he has been lawfully arrested. Search without a warrant will be permitted only in cases of urgency. There are few statutory exceptions to that — for example, section 23(3) of the Misuse of Drugs Act 1971 provides that a search warrant may be issued to search the premises for dangerous drugs of a person who has not been arrested or charged.
262 There are few cases where statute allows a search without a warrant. An example would be the Edinburgh Corporation Order Confirmation Act 1967. Invariably, they relate to cases where the police are looking for stolen goods. We do not believe that the powers given to sea fishery officers under this subsection relate to stolen goods. They relate to the examination of documents which should be kept. If the officers have reasonable cause to suspect that an offence has been committed, they can take that evidence to a sheriff or justice of the peace and obtain a warrant before the premises are searched.
We believe that the powers that are granted are wide. At common law, in cases of urgency the courts would look leniently at a search which had been done without a warrant. We believe that the amendment is a safeguard which the House should be keen to see maintained.

§ Mr. McQuarrie
I oppose the amendment, because the hon. Member for Orkney and Shetland (Mr. Wallace) said that sea fishery officers would be searching premises for documents.
On Second Reading I referred to the poaching of salmon in an area from Fraserburgh to Cairnbulg in my constituency. Over the course of two days, 2,000 salmon were poached with the use of speedboats and taken to private dwellings. If a warrant had to be obtained from a justice of the peace, the fish could have been removed from the house and taken away by car. When the sea fishery officers entered the house, there would be no fish.
Line 30 on page 4 refers to "any such document". If I had poached 2,000 fish, I would be selling them and would require invoices. It would not be done by word of mouth, so there would be documents in the house to the effect that the house owner was invoicing fish.
I am thinking not about the sale of one poached salmon but about the sale of 10 or 20 salmon to a hotel or some other organisation. The fishery officer must have the protection that he requires and be able to enter the house and look for the documents. That is why the amendment should be rejected.

§ Mr. John MacKay
First of all, we are not introducing with this clause any new powers or giving more rein to the enforcement authorities than they already have at present in relation to other fisheries offences. The wording of the clause is an exact repetition of that found in section 15(2) of the Sea Fish (Conservation) Act 1967, and, so far as I am aware, the powers conferred on British sea fishery officers have been exercised with tact and understanding and have caused no complaint.
To continue to allow the exercise of those powers under United Kingdom and, indeed, EEC fisheries legislation but to restrict their use under this Bill would create an anomalous situation which would be hard to justify not only to those who support the proper enforcement of the law in fishery matters but to those who wish to see full backing for measures designed to conserve fish stocks.
While I recognise that the misgivings of the hon. member for Orkney and Shetland (Mr. Wallace) are sincerely voiced, we should look at what is actually in the clause, and — perhaps more important — what is not. First, the powers of entry, production, search and detention of documents may not be applied to a dwelling-house. That is explicitly prohibited, although I know that there is a feeling that some illegal activity, particularly poaching, is centred on residences rather than business 263 premises. Secondly, any entry to premises has to be made at a reasonable time and, on top of all that, the BSFO has to have reason to suspect that an offence has been committed before he can search premises or seize and detain any document.
The amendment as drafted would still allow the BSFO to enter premises and to require the production of documents. Only after that stage would he be required to obtain a warrant to search, but it is only after that initial stage that he may have reason to search. If the amendment was accepted, we would give the BSFO powers enough to make him suspicious but withhold the power to enable him to follow up those suspicions. If he has to break off to go away and obtain a warrant from a sheriff or justice of the peace, is it likely that the evidence will still be there when he gets back? If the existence of a relevant document were denied, under the proposed alteration that denial could never be gainsaid.
As I have mentioned, the power has been in existence for some time without causing complaint. There are remedies available should it ever be abused, although I doubt whether they would be needed. Fisheries inspectors are as much part of the fishing community as fishermen themselves and have to live within it. They therefore know how to carry out their duties with tact and circumspection where necessary, but they need backing to discover and prove offences when necessary. There is no point in passing Acts of Parliament and giving fishery officers certain powers if we deny them the fundamental power of accumulating the evidence.

§ Mr. McQuarrie
Subsection (7) of clause 5 uses the words other than a dwelling-house". I, too, used the word "dwelling-house", but garages or huts could also be involved. No one would keep 2,000 salmon in his house, because they would stink. The Bill refers only to a dwelling-house. It does not refer to the garages or huts that might be nearby. It is the house that is excluded, not the adjoining garages or huts.

§ Mr. MacKay
I know that my hon. Friend was one of those who mentioned illegal activities in dwelling-houses on Second Reading and was keen that we should give fishery officers powers. I accept his point about the garage and the outhouses. I am not a lawyer, and the best thing is for me to give him a definition of a dwelling-house later today or by letter.

§ Mr. Wallace
I have listened to the Minister. I do not accept that just because something is provided in other legislation it is right in this Bill. His reply does not come as a surprise, as his right hon. and noble Friend gave a similar reply to my right hon. and noble Friend Lord Grimond in another place. As my right hon. and noble Friend said, it is no use arguing with Ailsa Craig, so I beg to ask leave to withdraw the amendment.