AG v Burnel and Sylla [2017] JRC 017 (20 January 2017)

JUDGMENT THE BAILIFF: 1. This case involves infractions of the Sea Fisheries (Jersey) Law 1994 and regulations under the Sea Fisheries (Licencing of Fishing Boats)(Jersey) Regulations 2003 , and the Sea Fisheries (Trawling, Netting and Dredging)(Jersey) Regulations 2001 . The defendants face a number of charges each. They are charges which, in some respects, cover similar ground because Advocate Leeuwenburg says, in our view with some justification, that the harm which is caused under the licensing regulations and under the engine power regulations is the same harm, although in fact in our judgment that does not have an impact on the fines which ought to be imposed.

2. We say that because there are important policy objectives under this legislation, the protection of our fisheries and the prevention of environment damage, which is also to protect fisheries; and it follows that the question is not whether or not charges have been brought which in effect mirror each other, which I think was the main thrust of what Advocate Leeuwenburg was saying, but what the overall penalty should be. In that connection we note the maximum penalties, for example, for fishing with beam trawls without authorisation is £20,000 on a first offence and for using beam trawls from a vessel with an engine whose power exceeds 221kW would be £20,000 also for a first offence, and so although the fines which have been moved for by the Crown have been fixed for each of those offences, if the Court had been considering an indictment and charges with just one of the sets of offences we would have been looking at an increased penalty in relation to each charge. So while we accept that point which Advocate Leeuwenburg has put we do not think it makes any difference to the overall penalty which we should be imposing.

3. The second point which Advocate Leeuwenburg made to us was that these offences were committed in the 12-mile limit and not the 3-mile limit and there should be a higher level of protection in the 3-mile limit. Historically, it is true that the island had jurisdiction over 3 miles, and that there has been a relatively recent expansion of jurisdiction in the last 20 years or so, in that respect. We cannot see, given that we are looking at the same territorial sea, that it makes any difference whether the offence is committed within the 12-mile limit or the 3-mile limit. The fact is that both those areas are subject to regulatory control and indeed the defendants will be well aware of that because professional fishermen will know what they are and are not entitled to do pursuant to the Bay of Granville agreement which settles this particular issue. So we do not take account of the suggestion that the offences being committed in the 12-mile and not the 3-mile limit are somehow less serious.

4. We do note that the defendants have had to travel to Court now twice, and that they had some difficulties in getting here today because of diminished transport facilities. Although we asked Advocate Leeuwenburg why they did not come in the Louis Pauline we were told it was sold but presumably they could have come in their other boat which has replaced it.

5. It was said that we should differentiate between Mr Sylla, the owner of the boat and Mr Burnell, the master of the boat. We do not think that there is a significant distinction to be made because it is clear from the evidence that was put before us that Mr Burnell appreciated that he was fishing where he ought not to have been fishing and, Mr Sylla should have been aware of it - although there is no evidence that he was actually aware of it and so we think that to treat them in a similar way in terms of fines is not unfair.

6. We have been given some financial information from Advocate Leeuwenburg which, as we put to him, we found difficult to accept at face value, and the defendants were offered the opportunity of an adjournment so that they could provide evidence on oath as to their financial position. They prefer that we should proceed today on the basis of the material put before us by the Crown and the mitigation put forward by their counsel other than the financial information which, as I have said, we simply do not feel able to accept as it stands. As we are proceeding today we do not take account of the financial information which has been put forward and in those circumstances it is right that I say for the record and for future guidance of those involved in cases of this kind that the Court would expect to see an adequate affidavit of means which sets out the assets and the income of the defendants and their respective liabilities and regular outgoings if financial considerations of this kind are to be taken into account when we impose sentence.

7. Having regard to the fact that this offending took place over a period of 3 months and it has not been disputed, although that is not the subject of the charge, it took place also in 2014; and having regard to all the information put before us we cannot think that the Crown's conclusions are out of order and they are therefore granted. In those circumstances, we are going to impose fines as requested by the Crown totalling, in the case of Mr Burnell, the sum of £40,000 and in the case of Mr Sylla the sum of £37,500 and in each case the defendant should pay £2,000 towards prosecution costs. We expect the fines to be paid first and the prosecution costs to be paid afterwards.

8. We just wish to add this, that one of the counts on the Indictment in respect of which the Crown has moved for no separate penalty is the failure to maintain in operation the automatic tracking system which enables the vessel's location to be tracked. We think it would be preferable that this Court should impose a penalty specifically for that offence. We have not done so in this case because it will not make any difference to the overall sum but we wish to make it absolutely clear that this offence is a serious offence, because it is the maintenance and operation of that system which is a critical part of the protection which ought to be available, not just for the regulators, the Sea Fisheries Office, but also for the owner of the vessel who needs to know whether his master is fishing in the right area or not. So we regard that as a serious offence and indeed its seriousness is demonstrated by the maximum penalties under the legislation because whereas the penalties for fishing with beam trawls without authorisation, for example, are £20,000 on a first offence and £40,000 on subsequent offences, the failure to keep the automatic information system in operation carries an unlimited fine. Similarly in the context of an offence under Article 23 of the Sea Fisheries Law for knowingly providing false information, although we have noted that Advocate Leeuwenburg said that

the names might have been entered in the wrong order which rather goes to a denial of the offence itself, it amounts to an offence of fraud - that there is a deliberate knowing provision of false information to the Sea Fisheries officials, and we would treat that seriously, and although no separate penalty is being imposed on Mr Burnell in that respect, it is important that in relation to both Counts 32 and 33 we take those offences, the seriousness of those offences, into account in dealing with the overall penalty which is to be applied. In those circumstances the Court imposes the fines as set out in the schedule in the Crown's conclusions and costs as I have said.

9. The Court considers that 5 years is too long a period over which to pay fines of this kind and we will allow 3 years to pay and in each case the fine should be paid at no less than £13,000 a year, with a default sentence of 12 months' imprisonment for failure to pay.

10. Advocate Leeuwenburg, it is important that your clients take back to colleagues, to the extent that any other French fisherman should be minded that to behave in this way this Court will impose deterrent sentences in circumstances such as this. Authorities Sea Fisheries (Jersey) Law 1994. Sea Fisheries (Licencing of Fishing Boats)(Jersey) Regulations 2003. Sea Fisheries (Trawling, Netting and Dredging)(Jersey) Regulations 2001. Costs in Criminal Cases (Jersey) Law. Sea Fisheries (Vessel Monitoring Systems)(Jersey) Regulations 2014. Sea Fisheries (Log Books, Transhipment and Landing Declarations)(Jersey) Regulations 2014. Criminal Justice (Miscellaneous Provisions)(Jersey) Law 2016. AG-v-Groult 1998/42. AG-v-Biard 1998/169. AG-v-Grandmougin & Ferrantim 2002/81. AG-v-Lefielleul & Barbelenet [2006] JRC 148 . AG-v-Michieli & Clark [2010] JRC 217B . AG-v-Delalonde & Mesnage [2016] JRC 056 . Page Last Updated: 23 Feb 2017 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII