CHAPTER VIII. PROCEEDINGS BEFORE JUSTICES. PROCEEDINGS for offences against the Salmon and Freshwater Fisheries Act, 1923 (a), and for the recovery of monies recoverable in a summary manner thereunder, are to be taken in the manner directed by the Summary Jurisdiction Acts (b). This procedure will be found fully given in Oke's Magisterial Synopsis and other works on the practice before justices sitting as a court of summary jurisdiction: here, only the special points that often arise in fishery cases are dealt with. Place for laying Information.-The first exception to the usual rule is on the question of jurisdiction, the jurisdiction to hear some fishery cases having been enlarged by the Act. The rule is that an information should be laid before a justice of the county acting for the petty sessional division in which the offence was committed (c). The Act, however, provides (a) that an offence committed on the sea coast or at sea beyond the ordinary jurisdiction, which extends to low-water mark, shall be deemed to have been committed in any place abutting on the coast or adjoining the sea (d); and (b) that proceedings may be instituted in any place where the fish in respect whereof the proceedings are taken or the party charged may be found (e). Time of laying the Information.-Complaint must be made within six months from the commission of the offence, but provided this is done, it is immaterial when the information comes on for (a) 13 & 14 Geo. 5, c. 16. (b) Cf. Interpretation Act (52 & 53 Vict. c. 63), s. 13 (7), (10). (c) See Reg. v. Beckley (1888), L. R. 20 Q. B. D. 187, where it was said any justice of the county could act in the case of an indictable offence in any petty sessional division in the county. The decision in this case was approved in R. v. Beacontree Justices Essex, [1915] 3 K. B. 388. (d) 13 & 14 Geo. 5, c. 16, s. 75 (1), supra, p. 126. (e) Ib. s. 75 (2), supra, p. 126. hearing, and the prescribed penalty can be recovered even if six months have elapsed since the offence (ƒ). Who can lay an Information.-Under the repealed Salmon and Freshwater Fishery Acts the ordinary rule that any one could lay an information was supposed to prevail; but in 1890 the Queen's Bench Division (Coleridge, L.J., and Mathew, J.) held that as all the penalties under the Acts went to the conservators, they could only be recovered by the persons pointed out by the statute to receive them (g). This was in effect following the case of R. v. Cubitt (h), where it was held, under the Sea Fisheries Act, 1883 (i), that as that Act provided that its provisions were to be enforced by sea fishery officers, they only were entitled to prosecute under it. The effect of these decisions was annulled by the Fisheries Act, 1891 (k). Sect. 13 of this Act is as follows: "The powers conferred by the Sea Fisheries Act, 1883 (i), or this Act or any other Act relating to sea fisheries, or by any Act relating to salmon and freshwater fisheries, upon any authorities or officers to enforce any such Act, shall not be construed as limiting or taking away the power of any other person to take legal proceedings for the enforcement of any such Act or of any byelaw made thereunder." There is now no doubt that the ordinary rule prevails. Hearing the Case. The justices hearing the case must have no interest in the case, direct or indirect, nor must they have taken any part in directing the proceedings to be taken. The law on this point is discussed in the notes on sect. 76 of the Act (1). Defence mens rea. In fishery cases the question often arises whether it is necessary or not to prove intention. The ordinary rule is that intention must be proved if the act is one that may or may not be illegal; but if it is one that is absolutely forbidden, then intention need not be proved. If a person uses an instrument the use of which for all purposes is forbidden, such as an otter lath or jack, or fish roe, proof of intention is not required. If, on the other hand, he uses an instrument which may be legally used for some kinds of fish but is illegal if used for others, proof of intention is required. The point most frequently arises with regard to the necessity for a licence for fishing for trout. If a person is found fishing without a licence in a stream where there are trout and other fish, is he liable for fishing without a licence? The onus of proof is on the prosecution, and it is submitted that if it is proved that the defendant was fishing with a rod and line adapted for taking trout at a place where there are trout, with a bait that trout would take, and in the way that trout would be fished for, in the absence of proof to the contrary, he ought to be convicted. The defendant's mere statement that he was not fishing for trout should not exempt him from the penalty if he was prima facie fishing for them. The cases upon this point and the effect of the alterations in the Act are fully discussed in the notes on sect. 63 (m). Another point is that if a person is charged with taking a particular kind of fish, e.g. samlets, it must be shown by the prosecution that the defendant knew that the fish he took were of that kind. In Hopton v. Thirwall (n), the justices found as a fact that the defendant caught some samlets, but did not know they were samlets; they refused to convict, and the court upheld their decision on the ground that while a man was presumed to know the law, he was not presumed to know facts, and that here a guilty knowledge was necessary. A point which often arises on the hearing of fishery cases before justices, especially those under the Larceny Act, 1861 (0), is a dispute as to whether the act was or was not done under a bonâ fide claim of right. If a real question as to a right of property is raised their jurisdiction is ousted (p). It is for the justices to decide whether on the evidence before them a bona fide question of title is raised (q), and it is only when they are satisfied that the claim is one that cannot exist in law or is not made bonâ fide that they are entitled to proceed in the matter (r). The claim must be one which can exist in law. If it cannot, the jurisdiction of the justices is not ousted (s). Belief, however honest on the part of the claimant in the existence of the right, is not enough (t). A claim, such as is often honestly set up, by a person (m) Supra, p. 116. See also Davies v. Evans (1902), 86 L. T. 419. (n) (1863), 9 L. T. 327. (o) 24 & 25 Vict. c. 96, vide supra, pp. 17-20. (p) R. v. Stimpson (1863), 4 B. & S. 301. (1) Legg v. Pardoe (1860), 9 C. B. (N. S.) 289; Cornwell v. Sanders (1862), 32 L. J. M. C. 6. (r) Burton v. Hudson, [1909] 2 K. B. 564; Watkins v. Smith (1878), 26 W. R. 692; R. v. Stimpson (loc. cit.); R. v. Peak (1863), 8 L. T. 536. (8) Smith v. Cooke (1914), 84 L. J. K. B. 959; Burton v. Hudson, [1909] 2 K. B. 564; Mussett v. Burch (1876), 35 L. T. 486; Priest v. Archer (1887), 51 J. P. 725; Hargreaves v. Diddams (1875), L. R. 10 Q. B. 582. (t) Hudson B. & S. 585. V. MacRae (1863), 4 as one of the public to fish in a non-tidal river, is one that cannot exist in law (u). As to Proof of Ownership.-In Greenbank v. Sanderson (x), S. was charged with unlawfully fishing in a river. The prosecutor produced a lease of the lands executed by the preceding owner, and proved execution by the lessee, but the witness of the lessor's signature was not called. The lease contained an express reservation of fishing, and the term was still current. Both the original lessor and lessee were dead, but rent had been received and paid under the lease for seven years. It was held that there was sufficient evidence of a private right of fishing without producing the probate of the original lessor's will, and that the justices ought to convict. In Blower v. Ellis (y), B. was charged with unlawfully taking fish in a private fishery. The water was part of a Norfolk broad or lake, thirty-five miles from the sea. The evidence showed that the tide did not reach the spot, though occasionally the fresh water was backed up so as to rise three or four inches when there was a high tide. Anglers had been turned off if no consent of the adjoining owners had been obtained by them. The court held that there was sufficient evidence to support the finding of the justices, that the broad was not a tidal navigable river where the public had a right to fish, but was a private fishery(2). Penalties. If the case is heard and the defendant convicted under the Salmon and Freshwater Fisheries Acts, the penalty is payable to the board of conservators if they prosecuted "unless the Court for some special reason otherwise order " (a). The special reason would be some reason connected with the particular case in which the conviction took place, not some general reason, that the board were not doing their duty, or that the justices did not like the way the board acted. Evidence. There are several provisions in the Act, giving special facilities as to evidence in proving certain matters. These are as follows: sect. 40 (5) (b), sect. 53 (4) (c), sect. 80, sect. 81 (d). (u) Hargreaves v. Diddams (loc. cit.); Pearce v. Scotcher (1882), 9 Q. B. D. 162; Smith v. Andrews, [1891] 2 Ch. 678. (x) (1885), 49 J. P. 40. (2) See also as to Norfolk broads, Micklethwait V. Vincent (1892), 67 L. T. 225; as to the Thames, Blount v. If in questions as to fishery rights arise where a bona fide claim of title that can exist in law is set up, the only remedy is an action in the High Court to establish the right. This usually takes the form of an action asking for a declaration that the plaintiff is solely entitled to fish at the place in question, and an injunction to restrain the defendant fishing there. In recent years there have been a number of these cases, such as Blount v. Layard and Smith v. Andrews (e), as to the right to fish in the Thames. They need not be considered here at length, for the procedure in these cases differs in no way from the procedure in an ordinary action as to any other right connected with real estate. (e) [1891] 2 Ch. 681, n.; Ib. 678. |