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This brief summary is offered without prejudice.
General
Unlike other countries (including England and Wales) Scotland
has no State licencing system for fishing. It is however a criminal
offence to fish for salmon without legal right or written permission
and generally it is a civil offence to fish for other fishes. Details
of the most significant statutes that apply are given below. Much of
this information was derived from "The Law of Game, Salmon &
Freshwater Fishing in Scotland" by Stanley Scott Robinson*. It
is not be taken as a definitive description of the laws. Relevant Acts
should instead be consulted.
* The Law of Game, Salmon & Freshwater Fishing in Scotland. Stanley
Scott Robinson. Published by Butterworths and the Law Society of Scotland,
1990.
Ban on the sale of rod caught salmon and sea trout
effective from October 1 2002.
Citation and commencement
1. These Regulations may be cited as the Conservation of Salmon (Prohibition
of Sale) (Scotland) Regulations 2002 and shall come into force on 1st
October 2002.
Prohibition of sale
2. - (1) No person shall sell, offer or expose for sale any salmon that
has been taken by rod and line.
(2) In paragraph (1), "rod and
line" means single rod and line with such bait or lure as is lawful
on 1st October 2002.
EXPLANATORY NOTE (This note is not
part of the Regulations)
These Regulations prohibit the sale,
offer or exposure for sale in Scotland of any salmon that has been taken
using a rod and line (regulation 2). "Salmon" means all migratory
fish of the species Salmo salar and Salmo trutta commonly known as salmon
and sea trout. It also includes parts of any such fish.
Provision is made in section 10B of
the Salmon Act 1986 Act ("the 1986 Act") applying powers of
enforcement, entry, search and arrest to water bailiffs, constables
and persons appointed by the Scottish Ministers for the purposes of
the enforcement of the prohibition imposed by these Regulations.
In terms of section 10C of the
1986 Act any person who acts in contravention of these Regulations shall
be guilty of an offence and liable to a fine not exceeding level 4 on
the standard scale (£2,500 at the date this instrument comes into
force).
The announcement can read in
full on the
Scottish Office web site.
Salmon
Definition
Section 24(1) of the Salmon and Freshwater Fisheries (Protection) (Scotland)
Act 1951 defines salmon as:
"Salmon" includes all migratory fish of the species Salmo
salar and Salmo trutta and commonly known as salmon and sea trout respectively
or any part of any such fish"
Ownership of and access to salmon fishing
Ownership
Until captured, salmon are wild animals. Once captured, the salmon belongs
at common law to the captor. However, numerous statutes forbidding the
taking of salmon without right or written permission, and forfeitures
imposed by statute, have made possession of salmon safe only where they
have been taken by lawful means. Nevertheless, the basic position is
that it is not the salmon but the right to fish for them that is owned.
Thus, nobody may fish for salmon in rivers or estuaries or in the sea
within territorial limits without permission of the Crown or the party
vested in the Crown rights. In many cases in rivers, estuaries and in
the sea, the rights have been granted to private individuals, companies,
local authorities and others. Salmon fishing rights are heritable titles
and may be held separately from ownership of the land or may have been
given along with ownership of the land. Where the right is held separately
from the land, the proprietor of the right has an implied right of access
for the purpose of exercising his right to fish for salmon. The fishing
right must be exercised in such a way that it causes the least prejudice
to the rights of the riparian owner.
The right to fish for salmon carries with it the inferior right to fish
for trout but this right must not be exercised in a way that will interfere
with the rights of the riparian owner.
Access
Section 1 of the 1951 Act (as amended by the Salmon Act 1986)
states:
"1. If any person without legal right, or without written permission
from a person having such right, fishes for or takes salmon in any waters
including any part of the sea within one mile of mean low water springs,
he shall be guilty of an offence ......"
Thus, access to salmon fishing is available only to the owner of a salmon
fishery or with the express, written permission of the owner. The owner
may attach conditions to the permission, such as method, location, times
available etc. The owner may not, however, give permission to do anything
that is unlawful. No rod licence is required.
Access to rod fisheries for those without right is thus by private agreement
with the owner. Access is widely available throughout Scotland but costs
involved depend on a number of factors, including catch expectations,
whether accommodation is attached, whether a ghillie is provided and
so on.
Regulations
Weekly Close Times
The prohibition of fishing for salmon during the weekly close time is
contained in section 13 of the 1951 Act, as amended by the Freshwater
and Salmon Fisheries (Scotland) Act 1976 (section 7 and Schedule
3) and the Salmon (Weekly Close Time) (Scotland) Regulations 1988
(SI 1988/390) made under the terms of section 3(3) of the 1986 Act.
Angling - the weekly close time for rods is Sunday.
Annual Close Times
Section 6(1) of the 1986 Act requires that the annual close time shall
be a continuous period of not less than 168 days and is to apply to
every mode of fishing for or taking salmon except during periods within
the close time when it is permitted to fish by rod and line. The annual
close time for the River Tweed is a continuous period of not less than
153 days.
The exact dates of annual close times vary between Salmon Fishery Districts
but are generally from about the end of August to mid-February.
The close seasons for most Salmon Fishery Districts date from byelaws
of 1864 and 1865 made under section 6(5) of the Salmon Fisheries
(Scotland) Act 1862. That Act was repealed by the 1986 Act but the
byelaws were preserved. Close seasons for other Districts have been
defined in Statutory Instruments relating to the Districts concerned.
Under the terms of section 6 of the 1986 Act, the Scottish Ministers
may prescribe for any district the dates and times of the annual close
time (although it may not be made less than 168 days), and the periods
within that close time when it is permitted to take salmon by rod and
line, and may make different provisions for different parts of the district.
Fishing by rod and line
Section 24(1) of the 1951 Act, as amended by section 8(6) of the 1986
Act, defines rod and line as:
"single rod and line with such bait or lure as is lawful at the
passing of this Act and, in the case of fishing for salmon in an area
to which and at a time during which regulations made under section 8
of the Salmon Act 1986 apply, is not specified in such regulations in
respect of that area and time".
This definition has been taken to preclude the use of double rod fishing,
cross line fishing, set lines, otter fishing, burning the water etc
as proscribed in the Trout (Scotland) Act 1860, which was repealed
by the 1951 Act.
Application may be made by a District salmon Fishery Board to Scottish
Ministers to make regulations specifying baits and lures that may not
be used in its district. The proposal may apply for different times
when and areas where the regulations take effect. Eighteen Orders specifying
baits and lures have been made, usually to prohibit the use of shrimps,
prawns or worms as bait and the use of lures bearing multiple sets of
hooks.
Freshwater fish
Definition
Section 24(1) of the 1951 Act defines freshwater fish as:
" "Freshwater fish" means any fish living in fresh water,
including trout, and eels and the fry of eels, but exclusive of salmon
and of any kind of fish which migrate between the open sea and tidal
waters;"
Section 24(1) of the 1951 Act defines trout as:
" "Trout" means non-migratory trout of the species Salmo
trutta living in fresh waters or estuaries;"
Ownership
Private waters
Until captured, freshwater fish are wild animals. Once captured, the
fish belongs at common law to the captor. However, the legal right to
take such fish as can be captured belongs to the proprietor of the land
which is contiguous to the river, stream or loch in which the fish are
to be found. Thus, although there is no right of property in the fish
before capture, only the proprietor of the lands or those authorised
by him, have the right of fishing for them. Except in the case of waters
subject to a Protection Order and in the waters entering the Solway,
protection of the fishing right depends upon the common law of trespass.
The remedy of a proprietor or occupier against an unauthorised fisherman
is to order him from the locus, and, in the event of refusal or threatened
repetition, to initiate an action of interdict.
The broad principles involved are:
No one has any right to trespass upon the lands of another for the purpose
of fishing;
No one, even if he is lawfully on the bank of a river or loch under
a right of access, has the right to fish in the river or loch;
Members of the public, having neither title nor right, cannot establish
a right by any usage of fishing for however long a period, as against
a proprietor having title to the land over which the stream flows.
These are principles of civil law and can be enforced only in civil
proceedings.
Apart from in the Solway and where Protection Orders are in force, there
is only one case where unauthorised fishing by a trespasser can be made
the subject of criminal proceedings, and this is under the Theft
Act 1607. The Act applies to an ordinary fish pond, or "stank",
enclosed all round where the fish may no longer be said to be feeding
in a state of nature. It applies to any artificial pond or reservoir
which has been stocked by the owner and which has neither inlet nor
outlet. Any person removing trout from a stank without authority from
the owner or occupier of the land surrounding it is guilty of theft.
It is open to question whether anyone taking fish from an ordinary river
or stream which has been stocked is guilty of theft.
In the case of a loch acquired by a Water Authority, a previous owner
may reserve rights of fishing but the fishing must not be done in such
a way that it will interfere with the purity of the water.
Public waters
Public waters are those which are both navigable and tidal. The tide
must ebb and flow at the point where the right is claimed and the right
extends up rivers as far as ordinary spring tides.
Fishing for freshwater fish
In general, the only permitted method of fishing for freshwater fish
is by rod and line as defined in Section 24(1) of the 1951 Act, as amended
by section 8(6) of the 1986 Act. However, under section 2(2) of the
1951 Act, in any pond or loch, where all proprietors agree, a right
of fishing for trout by net may be exercised, and in any inland water,
a proprietor or occupier having a right of freshwater fishing may take
any freshwater fish other than trout by means of a net or trap.
Access
In general, it is not a criminal offence to fish for or take trout in
Scotland. However, this does not imply that there is, as some would
assert, a free right to fish anywhere. The rights of riparian owners
are protected by principles of civil law and permission should be sought
before fishing.
There are some differences in relation to waters flowing into the Solway
Firth. Section 9 of the Solway Act 1804 (this section is still
in force) makes it an offence to fish for salmon or other fish without
permission. However, this no longer applies to the River Annan and Border
Esk. The 1951 Act is usually used in the case of salmon.
Protection Orders
Protection Orders may be made under the 1976 Act. Section 1 of this
Act states that:
"Where Scottish Ministers are satisfied that, if proposals submitted
under this section were implemented, there would be a significant increase
in the availability of fishing for freshwater fish in inland waters
to the which the proposals relate, they may, subject to subsection (3)
below, make an order (in this Act referred to as a "Protection
Order");"
Thirteen Protection Orders are currently in force. The locations of
the areas covered are shown on the map.
Principal statutory offences relating to fishing for freshwater fish
Where a Protection Order is in operation, it is an offence to fish for
or take fish from inland waters in the prescribed area without legal
right or written permission from the person having such right. (Freshwater
and Salmon Fisheries (Scotland) Act 1976)
Where a Protection Order is in operation, it is an offence to contravene
any prohibition contained in that order or to attempt to commit such
an offence or do any act preparatory to the commission thereof. (Freshwater
and Salmon Fisheries (Scotland) Act 1976)
Where a Protection Order is in operation, it is an offence to wilfully
obstruct or refuse to allow a warden or other authorised person to exercise
his statutory powers of enquiry, entry and seizure. (Freshwater and
Salmon Fisheries (Scotland) Act 1976)
It is an offence to fish for or take freshwater fish in inland waters
other than by rod and line. The use of double rod fishing is unlawful.
(Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951)
It is an offence to fish for trout during the annual close time, which
is between 7 October and 14 March. This offence and the offence of
having
trout in possession during the annual close time does not apply to
the owner, occupier or lessee of any water where trout are kept in
captivity
or artificially reared and fed, or any employee there for that purpose,
or to any person to whom such fish have been consigned for e.g. stocking.
(Freshwater Fisheries (Scotland) Act 1902, amended by Trout (Scotland)
Act 1933)
Subject to the above, having trout in possession during the annual close
time is an offence. (Freshwater Fisheries (Scotland) Act 1902, amended
by Trout (Scotland) Act 1933)
It is an offence to possess non-migratory trout or instruments, poisons
or explosives which could be used for taking trout, in circumstances
which afford reasonable grounds for suspecting that the accused had
obtained possession of such trout or the instruments etc as a result
or for the purpose of committing an offence against sections 1-4 of
the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951
It is an offence for any owner, occupier or lessee of water where trout
are kept in captivity and artificially reared and fed to take any trout
during the annual close time except for scientific or breeding purposes
or for removal to other waters. (Freshwater Fisheries (Scotland)
Act 1902, and Trout (Scotland) Act 1933)
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