Devon & Severn Inshore Conservation Authority -v- Laura D Fishing Limited (and others

In September 2016 48 charges were laid against the owners of the MFV "Joanna C", owned and operated by Laura D Fishing Limited, and also the MFV "Golden Promise" owned and operated by South West Trawlers Limited. Derek Meredith was managing director of both companies.  The skippers at the time of the alleged offences were Mr David Bickerstaff (the "Joanna C") and Mr Derek Meredith ("Golden Promise").

There were, initially, 48 counts laid against all four defendants. The allegations were fundamentally that the vessels, at the time of the alleged offending, were scalloping and/or fishing within prohibited areas inside the six nautical mile offshore limit - over which the Devon & Severn Inshore Fisheries Conservation Authority ("DSIFCA") has jurisdiction. The offences related to alleged voyages between the 6th and 18th January 2016 and between the 17th and 18th February 2016.

In particular it was alleged that both vessels at different times were either using mobile fishing gear contrary to the relevant DSICA Mobile Fishing Permit Byelaw, or, operating in areas that were prohibited under the South Devon Trawling and Crabbing Chart provisions. Both alleged offences under these regulatory provisions, were contrary to the Seafish (Conservation) Act 1967 and/or the Marine and Coastal Access Act 2009, Section 163.  In some of the areas when scalloping/fishing was not permitted at all; in other areas it was only permitted between certain set times ie 0700 to 1900 on each relevant day.

It was at all times accepted by the Defendant that fishing for scallops, like fishing for most UK fisheries, is regulated. It was also accepted that in the sea areas adjacent to Brixham there are a number of special areas which prohibit dredging activity and that there are also time and date restrictions which, regardless of area, place "curfew" restrictions on dredging.  Further it was not denied that both vessels were in the prohibited areas at the times alleged - but at all such times the fishing gear was inboard , stashed and stowed. The vessels were therefore dodging and not fishing. The prosecution, however, set out to prove these allegations by examination of evidence in the form of the onboard vessel monitoring system ("VMS") which is fitted to all commercial fishing vessels over 12 metres in length and provides evidence of the position, course, speed and direction of both vessels. In the many detailed charts produced, account was taken of prevailing sea and weather conditions at the time. According to DSIFCA it was possible to compare these factors during known periods of fishing, as against alleged periods of fishing on the 48 indictments. DSIFCA therefore sought to prove that, as a result of the VMS system ten minute readings of both vessels' position, course and speed a complete record of the vessels' movements could be made out during any particular fishing trip. DSIFCA did accept that the position and speed report were "spot" readings at the time of recording - as opposed to an average speed over the previous ten minute period.

Although it was originally alleged that catch rate on the days in which counts were laid was greater than those in which it was accepted that legal fishing was carried out, this point is not relied upon by the prosecution at trial. The only supporting evidence produced by DSIFCA was that both vessels carried a second navigation system - Automatic Identification System ("AIS"). As will be well known in the industry, this system simply reports the vessels' position and navigation details. However it is not compulsory for vessels such as the "Golden Promise" or "Joanna C" to transmit such data. DSIFCA alleged that on occasions when alleged illegal fishing was taking place, the AIS data was not transmitted. It was therefore submitted that this was a further attempt to conceal illegal fishing.

DSIFCA produced bundle after bundle of supporting documentation with alleged evidence to support the counts being laid. In particular there were no less than ten statements (with supporting exhibits etc) laid by the chief prosecuting officer Mr Matthew Mander, as well as a further thirteen statements by individuals whose evidence was submitted in support of the allegations being made. Some of the evidence related to the alleged preservation, conservation and protection of fishing resources and emphasised the environmental impact of illegal fishing; others referred to the presences of reefs and/or rock structures protruding from the seabed which, it was submitted were damaged by the alleged illegal fishing; other detailed and very extensive evidence related to weather conditions, e-logs, sales notes and - towards the end of the case - animated charts were produced. There was also a very substantial amount of computer printout information which was forwarded as an example of the raw data on which the VMS and AIS information had been calculated and plotted on the 310 A3 size charts that were submitted in support of the prosecution case.

Additionally, detailed reports provided by the prosecution's expert Mr Edwin Derriman  supported the prosecution case. These stated that on an objective analysis of the plotted positons of both the "Golden Promise" and "Joanna C"  in his opinion the vessels were fishing at the time alleged. In order to deal with these assertions, the Defendants had to instruct its own expert Mr Nigel Blazeby of Blazeby Marine Consultants Limited.

All four defendants denied the allegations from the outset and as a result the case was transferred from the Magistrates to the Crown Court where, as in the Magistrates Court, there was a plea of not guilty to all counts by all four defendants. The case was allocated to His Honour Judge Laurie QC and directions were set out as long ago as December 2016 - there was a pre-inquest hearing on the 16th February 2016 but due to the complexity and detailed nature of the case it was not possible to fix a trial date before the 2nd October 2017. However at the commencement of this trial the trial Judge clearly had other commitments and problems and therefore had to adjourn the trial until a date fixed in February 2018. Accordingly all parties met in Plymouth Crown Court on the 19th February 2018. However  due to the need for Mr Blazeby and the chief prosecuting officer Mr Mander to meet in an attempt to narrow the issues, valuable court time was rapidly used and the Judge did not consider that a fair trial could take place - due to the unavailability of further court time. Accordingly the trial was adjourned for the third time until a date in June 2018 which trial took place at Gloucester Crown Court before Judge Laurie QC. The trial itself lasted 3 ½ weeks and consisted of detailed evidence from Mr Meredith and Mr Bickerstaff as well as very substantial expert evidence from both Mr Edwin Derriman and Mr Nigel Blazeby. All witnesses were subject to very extensive cross examination and at all material times the jury and Judge were in attendance. At the commencement of this trial, the prosecution had reduced its counts from 48 to 40 in total and - although the amount of supporting documentation was just as substantial as it had been throughout the case - the primary issues ie whether the four defendants could be convicted on, effectively, VMS evidence alone remained the primary issue. Mr Oliver Powell of Outer Temple Chambers was instructed by Mr Charles Hattersley of Ashfords LLP on behalf of the Defendants and Mr Deni Matthews was instructed to prosecute on behalf of the DSIFCA. After 1 ½ days deliberation, the jury delivered a majority verdict to the effect that all four defendants were not guilty of 32 counts. The jury was divided in respect of the remaining 8 counts. However the prosecution has indicated that it will not be pursuing these eight counts. All four Defendants therefore stand full acquitted of all charges

A number of very important issues arising out of this very protracted, detailed and complex case and in particular:

  1. DSIFCA attempted from the outset to prosecute on the basis of computer generated VMS evidence - without any substantial corroborating evidence. This, in itself, is a flawed tactic and should serve as a lesson to all IFCAs that in order to succeed in prosecuting similar offences it will require substantially more evidence than that generated by VMS (and to some extent AIS) alone. They were warned frequently by the Charles Hattersley and the Defendants that their case was misconceived, disingenuous and would be unsuccessful - but refused to listen or negotiate. They maintained at all times an arrogant and self-serving stance.
  2. The costs incurred by the four Defendants in defending their position was very substantial indeed and although costs orders have been obtained from the Crown Court, no recovery can be made in respect of the two companies. It may be possible to make a recovery on behalf of Mr Meredith and Mr Bickerstaff but nevertheless there will be a very substantial shortfall indeed in the sums actually incurred defending all counts laid by the prosecution in this case which, are unrecoverable. These could amount to an amount in excess of £150,000 due to the convoluted, complex and detailed nature of the case laid by the prosecution. On any analysis this cannot be just or equitable. There should be some mechanism whereby successful defendants who have proved their innocence can recover at the very least a  substantial amount of the costs incurred in defending their positon in respect of charges which should never, in the first instant, have been laid at all.
  3. Although it cannot be denied that DSIFCA had jurisdiction within the six mile limit, there must be some constructive dialogue between those actively fishing the areas, quite legally, and that organisation. In this case the interviews were carried out in a brief and somewhat random manner and the DSIFCA has declined to enter into sensible discussions on how this aspect of the industry should be regulated."
  4. This realtively small industry should be working together - not tearing itself apart.
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