Notes for Private Water Bailiffs

FISHERIES CONSERVANCY BOARD FOR NORTHERN IRELAND

1. APPOINTMENT

You are appointed under Section 170 (1) (b) of the Fisheries Act (NI) 1966 (including amendments to 1991)

VERY IMPORTANT – YOUR AUTHORITY ONLY APPLIES TO THE WATERS NAMED IN YOUR WARRANT

2. POWERS

General powers for “an authorised person” are given under Section 172 of the Fisheries Act (N.I.) 1966. Those powers are as follows:

An authorised person may, for the protection of the fisheries, at any time –

(a) enter into and pass through or along or remain on the banks or borders of any lakes or rivers or of the tributaries thereof;
(b) with boats or otherwise, enter upon any such lakes or rivers;
(c) enter upon and examine all weirs, sluices, milldams, fish passes, mill races and watercourses communicating with such lakes or rivers and pass along the same;
(d) stop, enter and search any boat which has been or is engaged or is about to engage in fishing;
(e) examine all standing, floating or other nets whatsoever;
(f) examine all fish and all fishing engines found in any place which by this Act he/she is authorised to enter and for that purpose open any package found in such place and containing or suspected of containing any fish or fishing engine;
(g) seize any unlawful fishing engine or any lawful fishing engine which is being unlawfully used;
(h) seize any fish in the possession of a person found or suspected* of committing an offence under any statutory provision relating to fisheries or any fish which have been or are suspected of having been unlawfully captured;
(i) seize any other thing whatsoever by means of, or in relation to, which an offence under any provision of the Act has been or is suspected of having been committed;
(j) do all such other acts and things as he/she is authorised to do under this Act.

Dwelling House – NO AUTHORITY TO ENTER UNDER THIS SECTION:

“ Nothing in this section shall be construed as authorising any person to enter any enclosed garden or any dwelling house or the curtilage thereof except where the ordinary road or passage to any weir, dam, or dyke traverses such garden or curtilage.”

* “suspected” means suspected on reasonable grounds”

3. WHO REQUIRES A LICENCE?

Persons who have not attained the age of 12 years shall be exempt from the requirement to hold a fishing licence for angling.

Where any such person referred to above uses more than one rod and line or hand line at the same time to fish for take or kill salmon, trout and rainbow trout, or more than two rods and lines or hand lines at the same time to fish for, take or kill eels or coarse fish, he shall be exempt from the requirement to hold a fishing licence for angling only in respect of one rod and line or two rods and lines, as the case may be.
(Fisheries Byelaws (N.I.) 2003 Byelaw 8)

Juvenile season fishing rod licences are issued by the Board to a person who has not attained the age of 19 years.

Concessionary season fishing rod licences are issued by the Board to a disabled angler (through Board HQ only) , or to a person who has attained the age of 60 years.

4. WHAT ELSE IS A PRIVATE WATER BAILIFF AUTHORISED TO DO UNDER THE ACT

Section 179 (1) – If any person, using at any place a fishing engine for which a licence is required under the Act, or having such a fishing engine erected or in fishing order in his/her possession in or near any fishing place, fails on demand to produce to an authorised person a fishing licence by or by virtue of which he is authorised to use that fishing engine at that place, he/she shall be guilty of an offence.

Several main points to note under this section:

(a) What is a fishing engine?

Means any engine, net, instrument or device whatsoever capable of being used for taking or killing fish.

(b) Using ?

Must be using the fishing engine or having such a fishing engine erected and or in fishing order in his possession in or near any fishing place.

See note 3 above in respect of persons under 12 years of age and observe Board or Club policy in respect of juveniles unless serious offence/s committed.

(d) What does the bailiff do or say?

identify yourself, “I am a private water bailiff for this water” and produce your warrant or authorisation card, so that the individual can read it.

DO NOT HAND OVER YOUR WARRANT OR AUTHORISATION CARD !

(2) Request to see FCB rod licence

(e) If the angler states that HE HAS NO LICENCE; – ADVISE OF RIGHTS – PACE

request name and address in full (age, date of birth, occupation).
inform him/her that it is an offence not to have a licence, caution forthwith in the following manner: “ you do not have to say anything, but I must caution you that if you do not mention when questioned, something which you later rely on in court, it may harm your defence. If you do say anything, it may be given in evidence.”
Note down any reply that the alleged offender may make in your notebook and request him/her to sign the entry.
Request proof of identity i.e. driving licence etc; Seize the equipment he/she was using at the time of the offence if no identity is produced. REASON – you have authority to do so – one of the powers previously referred to. You may have been given a wrong name and in such circumstances you will be able to obtain a Forfeiture Order for the equipment seized.
Request to see authority to be on your club waters “SEVERAL FISHERY”. If he/she has no day ticket or permit, follow the same procedure by cautioning and note reply, if not already cautioned.

Inform the alleged offender that it is your intention to report the facts with a view to prosecution;

Make sure you note the date and time of the alleged offence and the townland;

Prepare a statement of evidence of the circumstances and forward same to the Secretary of your Club.
(f) Offender states that HE/SHE HAS A LICENCE BUT DOES NOT HAVE IT IN HIS/HER POSSESSION

Note the full name and address of offender.
Request proof of identity.
No proof of identity – SEIZE EQUIPMENT he/she is using.
Give the alleged offender five days to produce the licence to you or to some other appointed person or to the office at Portadown. Inform him/her that on production of the licence his/her equipment will be returned to him. If requested to produce the licence to FCB, the Board will need a copy of notice.

(g) FAILS TO PRODUCE LICENCE WITHIN FIVE DAYS

Inform FCB office or contact local FCB officer who will arrange to accompany you to the address given for the purpose of interview as to the reason for failure to produce. It is necessary for the private water bailiff to be present to identify the offender.

If wrong name and address has been given it will be necessary for the private water bailiff to forward a report to the Club Secretary for the purpose of making a Forfeiture Order application to local court for disposal of the equipment seized.

5. APPREHENSION OF OFFENDERS

Where an alleged offender is found offending against this Act an authorised person, i.e. a private water bailiff, may require him to desist from the offence and to give his name and address;

And if the offender after being so required, wilfully continues the offence or refuses or fails to give his/her name and address to the satisfaction of the authorised person or resides outside the UK, the bailiff and any person acting under his directions may apprehend the offender.

Where an alleged offender is apprehended, he must be taken forthwith and delivered into the custody of a member of the Police Service of Northern Ireland, in other words, taken to the nearest police station (These are the only circumstances under the Act where an offender can be detained).

6. THE MAIN OFFENCES THAT BAILIFFS ARE LIKELY TO COME ACROSS;

Section 41(1)

No licence for rod, net etc. known as “unlicensed angling”.

Section 41(2)

Having fishing engine erected or in fishing order or other unlawful method known as “fishing by unlicensed and unfair means”.

Section 164

Private trespass – any person without the authority of the owner or occupier enters upon a “several fishery” for the purpose of fishing or kills or takes any fish therein. Note – COPY OF LEASE IS REQUIRED FOR FCB FILES

Section 183

Obstructs or impedes – If any person obstructs or impedes any person exercising any power conferred by this part of the Act, for example:

Gives a false name or address;
Fails to hand over equipment;
States that he/she has a licence when it is later established that he/she has not;

Section 62 (1)

Poaching offences, lights etc – If for the purpose of taking or facilitate the taking of fish, any person uses or has in his/her possession or control, in or on the bank of or near the waters of any lake, river or estuary, any light or fire or any electrical or acoustical apparatus of any kind, he/she shall be guilty of an offence. Important to observe the activities of the person for some time to establish offence.

Section 62 (2)

Poaching, use of instrument, gaff etc – if for the purpose of taking any fish, any person uses or has in his/her possession or control, in or on the bank of or near the waters of any lake, river or estuary, any instrument to which this subsection applies, he shall be guilty of an offence. Same note as above.

Section 71 (1)

Unlawful use of net – it shall not be lawful for any person to use any net in the freshwater portion of any river or in any lake other than Lough Neagh and Lough Erne.

Section 110

Unlawful possession of salmon or trout – if any person buys, sells, offers or exposes for sale or has in his possession any salmon or trout unlawfully captured, he shall be guilty of an offence. In any proceedings under this section, the onus of proving that the salmon or trout, the subject of the proceedings, was lawfully captured shall lie on the defendant.

NOTE – in this section trout does not include rainbow trout

Section 56(1) b

Fishing on dam – use a rod and line from any position on or within five metres above or below any dam or such other distance as may be prescribed by byelaws.

Section 49

Chasing spawning fish – if any person chases, injures or disturbs spawning fish or fish on the spawning beds or attempts (otherwise than by means of lawful angling with rod and line) to catch fish thereon, he/she shall be guilty of an offence.

Section 45

Falsification of licence – a person who:
(a) “Uses or, with intent to deceive, presents a fishing licence for any time, date, period, place or purpose other than that for which that licence is valid; or

(b) Uses or presents, as being a fishing licence of which he/she is the holder, a fishing licence issued in the name of any other person; or

(c) Uses or presents a fishing licence that has been to his/her knowledge either in any manner altered (other than by a person duly authorised by the board) or fraudulently counterfeited;

shall be guilty of an offence.

NOTE – in such cases it is necessary to seize the documents as evidence – aiding and abetting any of these offences or back dating a licence is dealt with under the Magistrates Court (NI) Order 1981.

Section 69 (1)

Salmon nets near the mouth of rivers – No person (other than the owner of a several fishery within the limits thereof) shall shoot, draw or use any net for the taking of salmon;

(a) at the mouth of any river; or

(b) within half a mile in any direction from the mouth of any river

NOTE – mention relevant close season for salmon.

Section 69 (2)

Any person who (other than the owner of a several fishery in the whole of a river or its tributaries, within the limits of that several fishery) –

(a) who shoots, draws or stretches a net across the mouth or across any other part of a river; and

(b) who fails to leave an open channel which is

(1) at least one quarter of the width of the mouth of the river or, as the case may be, of that other part of the river, or eighteen metres, whicheveris the less, and

(2) of sufficient depth and width to facilitate the passage of salmon in that river;
shall be guilty of an offence

Salmon means all fish of the salmon kind and sea trout.

Note the situation in relation to mullet – can draft for mullet within half a mile of the river mouth.

Section 78 (1)

Erecting or using fixed engine at mouths of rivers (nets) – if at or within one mile in any direction from the mouth of any salmon river any person, other than the owner of a several fishery within the limits thereof, erects or uses any fixed engine, that person shall be guilty of an offence.

Salmon river means any river, which is frequented by salmon.

Fixed engine means:

(a) any stake, bag, stop and still or fixed draft net, or

(b) any net implement, engine or device fixed to the soil or secured by anchors or held by hand or made stationary in any other way and used solely for the purpose of taking or facilitating the taking of fish not being a fishing weir, or
rod and line (however used).
7. FORFEITURES

Section 195 (1)

On conviction any fish or and fishing engine used stands forfeited – does not apply to a motor car or sea fishing boat. Does apply to any other boat.
Disposal of Forfeitures

Bailiff to complete form and forward same to the Department of Culture, Arts and Leisure (Fisheries Division) for decision as to disposal. Usual to sell back a rod and reel to offender for a nominal fee.
8. DISPOSAL OF FISH SEIZED OR OTHERWISE DETAINED

Section 181

Where the fish is of the kind referred to in this section as “lawful fish”, i.e. captured within the season etc, it may be sold and the proceeds forwarded to the Board.

Where the fish is not “lawful fish” the bailiff may on the authorisation of the Board destroy or otherwise dispose of it in accordance with a direction from the Board.

Where a person proposes to sell, destroy or otherwise dispose of any fish he may produce the fish to a Justice of the Peace, and the Justice of the Peace may give to the person producing the fish, a certificate in writing describing the fish and any marks, peculiarities or other particulars thereof pointed out by that person.

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FISHERIES CONSERVANCY BOARD FOR NORTHERN IRELAND

Fisheries Act (Northern Ireland) 1966 (Reprint to 1969) and including The Fisheries (Amendment) (Northern Ireland) Order 1991

SECTION 170 – Appointment etc, of private water bailiffs

(1) Any of the following persons, namely,

(a) any persons who by virtue of any fishing rights in any lake or river has an interest in the preservation of the fish therein; or

(b) any persons who have united themselves into a society for the preservation of any fishery in any lakes or rivers; or

(d) the licence under a shell-fishery licence; or

(e) any licensees under such licences who have united themselves into a society for the protection of their shell-fish fisheries;
may by instrument in writing in the form set out in Schedule 5 appoint any person (other than a person disqualified under subsection (7) to be a private water bailiff for the protection of the fisheries in any such lake or river or the tributaries thereof, or on such part of the sea coast) or for the protection of that shell-fishery or those shell-fish fisheries.)

(2) A person appointed to be a private water bailiff shall not act in that capacity until his/her appointment is confirmed by a court of summary jurisdiction sitting for the petty sessions district (or any one such district where there are more than one) within which the private water bailiff is appointed to act

(3) A person making application under subsection (2) for confirmation of the appointment of a person as a private water bailiff shall, not less than fourteen days before the date of the hearing of the application, give notice in writing of the application to the Board and the Department of Culture, Arts and Leisure (Fisheries Division) and the Board and Department shall be entitled to appear before the court, be heard and adduce evidence on the hearing of the application, and may do so by (one of its officers) or by solicitor or counsel

(4) The confirmation of the appointment of a person as a private water bailiff shall be effected by the resident magistrate endorsing the instrument of appointment

(5) Where a court of summary jurisdiction has confirmed the appointment of a person to act as a private water bailiff within the petty sessions district for which the court sits or within any such districts of which that district is one, the court upon complaint made to it, may revoke the appointment and thereupon the appointment shall be terminated
(5a) Where a person who has appointed a private water bailiff revokes that appointment, that person shall, within fourteen days of the revocation, serve written notice thereof on the clerk of petty sessions for the petty sessions district in which the court by which the appointment was confirmed, sits

(6) Where:

(a) the appointment of a person as a private water bailiff has been confirmed under subsection (4) or revoked under subsection (5) or

(b) notice of the revocation of such an appointment has been received under subsection (5A)

the clerk of the court shall notify the Department and the Board of such confirmation or revocation or, as the case may be, such notice, as soon as practicable.

(7) An officer of the Board shall be disqualified for appointment as a private water bailiff

(a) Any person or society mentioned in paragraphs (a) to (e) of subsection (1) Who employs any person to act as a private water bailiff shall, before 31 January in each year, make to the Board a return in such form and containing such information as, may be prescribed by byelaws

(b) The Board shall maintain a register of the names and address of those who are entitled to act as private water bailiffs

(8) If any person-

(a) acts as a private water bailiff without having his appointment confirmed under subsection (4); or

(b) so acts after his appointment has been revoked either by a court under subsection (5) or by his employer; or

he/she shall be guilty of an offence (and shall be liable on summary conviction to a fine not exceeding £200).

(9) The powers conferred by this part on a private water bailiff shall be exercisable only for the protection of the fishery specified in his/her instrument of appointment
Section 170 (A)

(1) Any person whose appointment as a private water bailiff is confirmed after the coming into operation of Articles 25 of the Fisheries (Amendment) (Northern
Ireland) Order 1991 shall, unless his/her appointment is renewed in accordance with Schedule 5(A), cease to be a private water bailiff on the expiration of the period of five years from the date of that confirmation

(2) Any person whose appointment as a private water bailiff was confirmed before the coming into operation of that Article of the Order shall, unless his/her appointment is renewed in accordance with Schedule 5(A), cease to be a private water bailiff either

(a) on the expiration of the period of five years from the date of that confirmation, or

(b) on the expiration of the period of one year from the date of the coming into operation of that Article of the Order whichever period is the longer.

(3) In subsections (5), (5A), (6) and (8) of Section 170 references (in whatever terms) to a person’s appointment as a private water bailiff shall be construed as including references to the renewal of his appointment as such

(4) Nothing in this section shall preclude the re-appointment under Section 170 of a person who ceases, by virtue of subsection (1) or (2), to be a private water bailiff

SCHEDULE 5A TO PRINCIPAL ACT

RENEWAL OF APPOINTMENTS OF PRIVATE WATER BAILIFFS

(1) Where any person (in this schedule referred to as “the applicant”) intends to renew the appointment of a private water bailiff, he/she shall, not less than six weeks before the date on which the appointment is to cease to have effect, serve notice, in such form and continuing such particulars as may be prescribed by regulations, on –

(a) the Clerk of petty sessions

(b) the Department, and

(2) Where the Department or the Board objects to the renewal of the appointment of a private water bailiff, it shall, within twenty one days of receiving a notice under paragraph 1, notify the applicant and the clerk of petty sessions of its objection and of the grounds thereof

(3) Where, within the time specified in paragraph 3, the clerk of petty sessions has received no notice of any objection under that paragraph, he/she shall confirm the appointment and endorse the instrument of appointment to that effect

(4) (1) Where the Department or the Board notifies (or both notify) the applicant that there is an objection to the renewal of the appointment, the applicant may apply to the court for confirmation of the renewal of the appointment

(3) Subsections (3) and (4) of Section 170 shall apply for an application to the court under sub-paragraph (1) in the same manner as they apply for an application under subsection (2) of that section

(5) In this Schedule –

“the applicant” has the meaning given in paragraph 1;

“the court” means a court of summary jurisdiction sitting for the petty sessions district (or any such district where there is more than one) within which the private water bailiff is appointed to act and “clerk of petty sessions” shall be construed accordingly

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THE ROLE OF PRIVATE WATER BAILIFFS IN WATER POLLUTION CONTROL

Private Water Bailiffs are appointed under Section 170 of the Fisheries Act to protect the waters named on their warrants. Such bailiffs have long considered that they should be taking a more active role in preventing water pollution as part of their role in protecting the fishery

There are, however, considerable difficulties in involving private water bailiffs in water pollution, viz

(a) The danger of causing conflict between the owners or occupiers of Fisheries on the one hand and the employers of private bailiffs, e.g. a club etc; who may have leased the fishery of the trespass rights from the alleged offender

(b) The difficulty of providing the type of evidence required to substantiate a prosecution, e.g. accuracy over sampling points

(c) The difficulty in taking downstream or upstream samples of the area of jurisdiction for the purposes of sustaining a claim in the event of a fish kill

(d) The difficulty of interviewing alleged offenders residing outside the area of jurisdiction

(e) The high cost of laboratory analysis

The fact remains, however, that Private Water Bailiffs can be of considerable assistance in preventing damage to fisheries from polluting discharges and in order to maximise their usefulness, it is suggested that their role in water pollution control should be directed along certain paths, as follows;

SUGGESTED APPROACH FOR PRIVATE WATER BAILFFS – WATER POLLUTION CONTROL

Preventative: Private Water Bailiffs, who are frequently on the water under their jurisdiction may be the first to observe any new discharge to the waterway. They may also be the first to observe changes in permitted discharges. All such changes should be reported immediately to the local FCB officer or to FCB HQ
On occasion sudden discharges will be observed where there is no time to immediately follow the reporting procedure. If the extent of the discharge appears likely to cause a fish kill, or where a fish kill has occurred, the Water Bailiff should endeavour to obtain a sample of the discharge as follows:
A clean bucket (which should always be carried in the car and which should previously have been thoroughly washed at home under tap water) should be
held under the discharge at the point where the effluent is just about to fall into the river or waterway. The bucket should be filled and retained. The local FCB officer or FCB HQ should be notified immediately
When contact has been established with the FCB officer the investigation can be completed jointly or by the FCB officer if there is danger of compromising Club or Fishery owner.
Dead Fish should not be removed from the river, as it may be necessary to obtain photographic evidence of fish in situ
The Private Water Bailiff should take notes of everything he observed and prepare a report as soon after the event as possible. He/she may and probably will, be required to give evidence and will receive all due help from the local FCB officer or FCB HQ. He/she should note the time a sample was taken, weather conditions and state of flow in river. Also note evidence of fish in distress. (Often this does not occur until some distance below the discharge point)
If the alleged offender appears on the scene when the sample is being taken, it is probably best to interview him as again this may compromise the fishery owner. However, any remark made should be noted. It is important not to make accusations. As in many instances the discharge has been found to be coming from a source other than that which was first suspected

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