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Jamie-Law, Solicitor
Category: Law
Satisfied Customers: 18387
Experience:  Solicitor
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It's about prosecution under the Fisheries Act- Section

Customer Question

it's about prosecution under the Fisheries Act- Section 27(1)(a):
Fishing without a licence or breach of a condition of such a licence.
JA: Have any charges been filed? If so, when is the next court date?
Customer: it's a notice of prosecution, no court date yet
JA: Where did this occur?
Customer: Dec 2019
JA: Anything else you want the Lawyer to know before I connect you?
Customer: no, thank you
Submitted: 7 months ago.
Category: Law
Expert:  Jamie-Law replied 7 months ago.

Hello my name is ***** ***** I will help you. I am just reviewing your question. This is an email service so there may be delays when responding.

Expert:  Jamie-Law replied 7 months ago.

What do you want to know about this today please?

Customer: replied 7 months ago.
Hi, essentially this is about my father-in-law’s receipt of the Environment Ageny’s (EA) ‘Notice of Court Action’ letter.I will briefly summarise my father-in-law’s case and the lack of aggravating features:• He fully admitted the offence fishing without a rod licence on private property (which he was unaware was an offence) at the time of being stopped,
• He was polite and fully cooperated with the bailiff,
• He gave full and correct personal details and signed paperwork at the scene,
• He has no previous fisheries act offences nor any other criminal offences,
• This was therefore his first offence,Our contention is that the considered circumstances of this case means that an out of court disposal option would have been the proportionate and fair outcome, most likely a Fixed Penalty Notice (FPN) or Variable Monetary Penalty
Customer: replied 7 months ago.
the legislation says (ps below) and makes reference to Fixed penalty notices:
Unauthorised fishing etc
(1)A person is guilty of an offence if, by any means other than a licensable means of fishing, he fishes for or takes any fish in circumstances where—
(a)the fishing or taking may be authorised under section 27A above, but
(b)he is not authorised to fish for or take the fish under that section (or is so authorised but the fishing or taking is in breach of any condition of his authorisation).37A Fixed penalty notices for certain offences.
(1)Where on any occasion a water bailiff or other officer of the [F167appropriate agency] finds a person who he has reason to believe is committing, or has on that occasion committed, a fixed penalty offence, he may give to that person a notice (in this section referred to as a “ fixed penalty notice ”) offering him the opportunity of discharging any liability to conviction for that offence by payment of a fixed penalty.
(2 )Where a person is given a fixed penalty notice in respect of a fixed penalty offence—
(a)no proceedings shall be instituted for that offence before the expiration of the period for paying the fixed penalty; and
(b)he shall not be convicted of that offence if the fixed penalty is paid before the expiration of that period.
Expert:  Jamie-Law replied 7 months ago.

What is it you want to know about this today please?

Customer: replied 7 months ago.
BUT, when you go to the disposal options for each offence FPNs do not feature- AT ALL(?)
Expert:  Jamie-Law replied 7 months ago.

What is it you want to know about this?

Customer: replied 7 months ago.
7.3.1 Fixed monetary penalties (FMPs)
We may issue FMPs:where we have given advice and guidance, it has not been followed and improvements have not been made
for minor offences or where there is no direct environmental impact, such as paperwork and administrative offences
The FMP is £300 for businesses and £100 for individuals. Paying 50% of the sum due within 28 days of receiving the notice of intent that the penalty will be imposed will clear legal responsibility for the FMP. Or if representations have been made within the 28 day period but a final notice is served, legal responsibility can still be cleared by paying 50% of the sum due within 28 days of the final notice.The outcome we want to achieve is a change in the offender’s behaviour.7.3.2 Variable monetary penalties (VMPs)
We may issue VMPs for more serious offences, including:when there is evidence of negligence or mismanagement
when there is an environmental impact
to remove an identifiable financial gain or saving as a result of the breach
where it is not in the public interest to prosecute
Expert:  Jamie-Law replied 7 months ago.

Yes I have read all this. But you still haven't asked me a question.

Customer: replied 7 months ago.
is it an abuse of process- should he have been entitled to an out of court disposal / fine?
Customer: replied 7 months ago.
It further makes clear that a breach should not be a conveyer-belt route straight to a court appearance with a commitment that EA will “use the full range of enforcement and sanctioning options available…”.
Customer: replied 7 months ago.
They also say: We will normally consider all other options before considering criminal proceedings. Generally, prosecution is our last resort.
Expert:  Jamie-Law replied 7 months ago.

What are you asking, can he be prosecuted?

Customer: replied 7 months ago.
under their disposal framework was he entitled to an out of court disposal- and if so, does this error undermine his prosecution?
Customer: replied 7 months ago.
I can't believe it is appropriate for a first time offender who admitted it at the scene and cooperated by signing paperwork and giving their personal details should go to magistrates court ...?
even shoplifters and other criminals have the opportunity of a caution or out of court disposal for first time offenders (FPN etc)
Expert:  Jamie-Law replied 7 months ago.

No it does not.

Its a matter for the prosecuting authority whether they want to prosecute.

Same for Rail Companies. They can give a fixed penalty or prosecute.

Its really up to them.

It does NOT invalidate any prosecution. Its mitigation for any sentence, but its not an abuse argument.

I am sorry if this is not the answer you want, nor the one I want to give you, but I have a duty to be honest

Can I clarify anything for you about this today please?

Expert:  Jamie-Law replied 7 months ago.

If this answers your question could I invite you to rate me 3, 4 or 5 stars before you leave today?

I am only paid for my work on this question if you rate my answer, using the star system at the top of the screen. Please do not forget as it is an important part of the online process! If you need anything further I am available for a follow up at no extra cost. Thank you.