Inspection Reports and Detentions
It is a very nice ending to watch an inspection end with the comfort and knowledge that the matter is going no further.
However, during the course of an inspection something goes wrong and you find yourself being cautioned by a member of the naval services or indeed the Sea Fisheries Protection Authority, it is important that you remember one thing which is that at the end of the inspection, that inspector must prepare an inspection report.
Often times when tension is commencing, one of the bigger problems that exists is finding out precisely the exact basis for the detention and what it is that you may find yourself charged with.
It is often times the case that upon receiving a call you ask the skipper on what basis they have been claimed and they will tell you that it is under-recording or some similar type of offence but they refer to the words of the charge and it is in fact, often the section and article of the legislation that matters.
Under article 115 of regulation 404 of 2011, it is a requirement now of any inspector at the end of an inspection to produce an inspection report.
Under article 115 (3), it is a requirement of the inspector at the end of the inspection, to seek the observations of the master of the vessel.
At this point, it is possible to question aspects of the detention such as tolerances being used, sampling regime used etc.
The gut reaction of anybody in this situation may be to feel that asking questions now will only make things worse. Clearly, if you find yourself in this position, matters could not get a whole lot worse and asking questions is your right at this point.
Furthermore, failure by the inspector to seek your observations is, in my mind, an offence in of itself.
On a number of occasions, I have noted recently that inspectors are not seeking the observations of the Master and the Master often times is left wondering precisely what it is that they have done wrong or when they know what they have done wrong, they do not know the legal basis for the detention.
48 Hour Detention Orders
It is a feature of this particular area of law that when a vessel is detained, it is not just the vessel that is detained, but it is also the master, the crew and the fish on board as well as the gear.
We have read newspaper reports where phrases such as “unlawful detentions” have been brought to the attention of the court and the courts are very swift to protect the liberty of anybody who finds themselves in such a situation.
In fact, it is a cornerstone of this country that nobody should be detained unless lawfully done so.
In fishery matters, this is complicated by the arcane legal mechanism which has been set up around this.
A Sea Fishery officer (Navy of SFPA) have the power to detain a vessel by his own direction on foot of a suspected offence.
I have, in the past, come across situations where the suspected offence is not an offence.
However, while your head is still spinning, next thing you find that a member of An Garda Siochana is applying to the District Court to seek a detention order.
It is again my experience, that the person making an application to the district court for a 48 hour detention order is not asup to speed on the basis for a detention as the inspector might be. The Garda is dependant on the inspector to brief and explain properly what the basis for the detention is as the Judge in the District Court must be “reasonably satisfied” that an offence has been committed.
After that, the crew, the vessel, the fish, the cargo and the master are all detained for two days.
It is imperative that such applications are not simply allowed to go unchallenged. An invalid application for a 48 hour detention order can be grounds for the derailing of a prosecution.
It is therefore to the benefit of any Skipper, Master, Owner or Operator to seek to find out the contents of an inspection report and to question the basis of the detention and not just the allegation but also the basis for the allegation e.g. samples and tolerances.
Not asking or questioning an Inspector is not going to make the consequences of a prosecution any less severe.
contact Dermot at 0214901000 or firstname.lastname@example.org