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HMA V HUTCHISON & 16 OTHERS
At the High Court in Glasgow Lord Turnbull imposed fines on each of the accused after they pled guilty to providing false information as to the quantity of fish landed by their respective vessels.
On sentencing Lord Turnbull made the following statements in court:
"Today’s adjourned diets flow from proceedings arising out of four separate indictments and concern seventeen individual fishermen, all of whom were at times acting as the Master of the vessel on which they were fishing and most of whom were also directors of, and shareholders in, the various private limited companies which owned and operated the vessels concerned.
Each of the individual accused has pled guilty to providing false information as to the quantity of fish landed by their respective vessels in contravention of Article 3(2) of the Sea Fishing (Enforcement of Community Control Measures) (Scotland) Order 2000 and the Fisheries Act 1981 as amended.
I wish to begin by acknowledging certain aspects of these cases which apply across the board.
The first relates to the value of the Fishing Industry. The Fishing Industry makes a crucial contribution to the well being of many communities within our country, including those in the North East and in the Northern Isles. More than that though the Fishing Industry makes a significant contribution to the economy of the country as a whole.
The second matter relates to the manner in which that contribution is made. There would of course be no fishing industry were it not for the willingness of fishermen to go to sea.
It is correct to acknowledge that in doing so fishermen require to cope with challenging circumstances of isolation from family members and often with dangerous and frightening weather conditions, the likes of which will be wholly unfamiliar to others with more conventional working environments.
Over the history of the Fishing Industry, and even in recent times in Scotland, tragedy has often visited the families of those who spend their working lives at sea.
The third matter is this. All of the accused who appear today have spent their working lives as productive and hard working members of our community. Barring other regulatory infringements not a single one has ever come into any conflict with the law.
It was not surprising therefore to hear of the well respected positions within their communities which many held and of the embarrassment and shame which these proceedings have brought to them personally and to their families.
The fourth matter is this. In the case of each Master concerned there was no attempt made to disguise the actual level of income acquired, and income tax was paid on all sums received from the sale of both declared and undeclared landings of fish.
Having acknowledged these matters I require to turn to the circumstances of the conduct which brought this collection of such unlikely individuals to the dock of the High Court.
All of the accused participated in a practice which seems to have become widespread within the Pelagic Fishing Industry. It involved a deliberate and calculated determination to evade the quota levels for fishing available to each vessel.
The system through which this was achieved was both cynical and sophisticated and involved the connivance of a number of different interested parties, some of whom have benefited but have not been prosecuted.
The extent to which landings of fish were deliberately under declared was at times truly staggering and in the case of some of the accused concerned took place continuously over a three year period. What I found to be noteworthy was that no understandable explanation was provided on behalf of any the vessel Masters as to why this practice was commenced or continued with.
No one, for example, appears to have engaged in this exercise on account of struggling to cope financially with the costs of continued fishing within the quota levels allocated.
Indeed, in contrast to some within the Fishing Industry, those engaged in Fishing with the Pelagic Fleet appear to have been able to make very substantial sums over many years, providing very comfortable livings for themselves and their families.
In short then, and as was conceded by at least some of those who appeared before me, the motivation for the sustained furnishing of false information was purely financial. Those who were already making a good living saw this as a way in which more income could be generated.
No doubt the fact that so many were involved leant a veneer of acceptability to the conduct but there is another side to that as well. The fact that so many were prepared to participate in deliberate lies and falsehood means that the desire for financial benefit was able to overshadow the instincts of fairness, truthfulness and responsibility which will have influenced every other aspect of the lives of those concerned and which values they would expect to see others, including their own family members abide by.
The result is an episode of shame for much of the whole Pelagic Fishing Industry.
The penalty for the criminal conduct with which I am dealing is an unlimited fine. In ascertaining the appropriate level of fine in each case I have had regard to:
1. The periods over which the particular Masters under declared the levels of fish landed.
2. The number of occasions within this period on which false declarations were made.
3. The total value of the undeclared fish landed for which each individual Master was responsible.
4. The amount which has been agreed in each individual case as representing that individual’s Benefit from the criminal conduct concerned.
5. The varying financial circumstances of each of the individual’s concerned.
6. In the case of those accused to whom it applies, the fact of a previous conviction and the particular type of activity to which that previous conviction applied.
7. In individual cases I have also had regard to particular circumstances which apply to them and to which my attention was drawn in mitigation on their behalf.
The effect of the interplay of these separate features varies from individual to individual, with the result that different outcomes arise for most individuals concerned.
I have however accepted in each case that these proceedings have been responded to responsibly and that those concerned regret their involvement and the embarrassment which has been brought to them personally and to their families.
In each case I have been prepared to restrict the fines which would otherwise have been imposed by about one-third to reflect the utilitarian value in the early pleas tendered.
Furthermore I have also had regard to the effect of the quota deduction scheme which was implemented and affected all concerned.
Although on one view this scheme might have been thought to impact on the extent to which any individual Master benefited from the conduct concerned, I have been told that in the negotiations which brought the proceedings under the Proceeds of Crime Legislation to a conclusion it was agreed that the effect of quota deduction would be left out of account.
I was informed that the Crown’s view at that stage was that the effect to be given, if any, to the quota deduction arrangements was a matter to be considered at the sentencing stage.
Much was said to me concerning the effect of the quota deduction arrangements. Through these arrangements each affected vessel was, over a period of years, restricted to catching a quantity of fish which was below the share of the UK quota which would otherwise have been available to that vessel.
The purpose of these arrangements was to balance out, over a period of years, the effect of the overfishing undertaken by each vessel. The annual quotas allocated are fixed by weight rather than value and so the reduced quotas were also fixed in this manner.
This quota deduction arrangement was not imposed as a punishment but rather as a conservation exercise. Just as the quota arrangements themselves are designed to ensure fish conservation, so the reduced arrangements were put in place to ensure that, over an extended period of time, the intended conservation aims were achieved.
I do not accept that the accused in this case have lost out or have been made worse off as a consequence of these arrangements. I accept as accurate the observation that looking back with hindsight had they never overfished at all then they would have achieved a greater income over the extended period than they in fact have.
That is due to the massive increase in the prices obtained for the type of fish with which I am concerned in the period since 2002. That however is no more than an irony of the situation. It does not reflect any actual loss to those concerned. In fact as a consequence of the increased value of the fish those involved have still been able to generate very substantial incomes, despite being restricted to catching a smaller quantity.
If the current prices remain stable then when the quota deduction arrangements have been exhausted they will be in a position to increase that income even further.
Nor have I been influenced in my approach to sentence by the information put before me concerning the activities of foreign fishing vessels.
If there is an imbalance in the approach of the relevant authorities within the European Union that is a matter for the relevant Ministers to raise with their counterparts. If vessels belonging to states outwith the European Union are thought to enjoy some inappropriate benefit, or are not thought to be complying with their responsibilities concerning stock conservation, that is a matter to be addressed at governmental or international level.
I am dealing with the contravention of a law of this country which was introduced to ensure compliance with the international obligation which the United Kingdom had entered into.
I am entitled to treat that contravention as a serious matter regardless of how it might be thought that similar conduct would be, or has been, responded to elsewhere.
With these considerations in mind I have determined on the following disposals, which are the sums to be paid by each accused after making allowance for the discount which I mentioned a moment or two ago:
David Hutchison will be subject to a fine of- £40,000
Robert Polson will be subject to a fine of - £70,000
Thomas Eunson will be subject to a fine of- £40,000
Allen Anderson will be subject to a fine of- £3,000
John Irvine will be subject to a fine of- £80,000
Allister Irvine will be subject to a fine of- £35,000
Victor Buschini will be subject to a fine of- £70,000
Hamish Slater will be subject to a fine of- £80,000
Laurence Irvine will be subject to a fine of - £80,000
Gary Williamson will be subject to a fine of- £35,000
William Williamson will be subject to a fine of - £45,000
George Henry will be subject to a fine of- £12,000
John Stewart will be subject to a fine of- £15,000
Colin Leask will be subject to a fine of- £3,000
George Anderson will be subject to a fine of- £12,000
Alexander Masson will be subject to a fine of- £50,000
Alexander Wiseman will be subject to a fine of- £50,000
George Anderson will be subject to a fine of- £12,000
Alexander Masson will be subject to a fine of- £50,000
Alexander Wiseman will be subject to a fine of- £50,000
In each case I will also make an order remitting the fine to the Sheriff Court at Lerwick and in each case I will also make a fines enforcement order."
Alexander Buchan Limited
"The comments which I made earlier concerning the importance of the fishing industry apply equally to this accused limited company.
I recognise that the company had a long history of providing employment in the local area. However this company engaged in conduct which permitted a group of fishermen to land undeclared quantities of fish on 140 separate occasions over a 2 year period.
The fish which was undeclared had a value of nearly £5 million. The procedures which were adopted by this company to enable the relevant fisherman to land large quantities of undeclared fish were sophisticated.
These procedures also drew the company’s own employees into the deception which was perpetrated on the agency tasked with monitoring compliance with quota arrangements.
The truly insidious nature of what was taking place becomes clear when one realises that so many of those involved in the local fishing industry became aware of what was happening and required to participate in one fashion or another in order to continue the grand deception, without necessarily benefiting personally at all.
The scheme devised for avoiding compliance with the internationally agreed quota levels distributed to the individual vessels depended entirely on the willingness of fish processing companies, such as the present accused, to introduce machinery to disguise the true weight of fish landed and to introduce accounting systems to both underpin the pretence and accurately record, for other accounting purposes, the true quantities landed.
I find it very difficult to comprehend how discussions to engage in and implement such conduct and procedures could have been initiated amongst individuals who in every other respect were law abiding, responsible people who no doubt expected high standards of morality and integrity from their own families and friends.
In assessing the appropriate punishment for this accused company I have taken account of the sophisticated and complicated procedures necessary to permit the deception to continue.
I have taken account of the period over which this conduct was perpetrated, the number of occasions on which it had effect, the number of fishing vessels which benefited from the company’s unlawful conduct and the total value of the undeclared fish which was able to be landed as a consequence of the procedures made available by this company.
I have also, as required by statute, taken account of the benefit to this accused company of its criminal conduct, as reflected in the agreed sum imposed by way of a confiscation order.
However in the case of a company which was facilitating financial benefit for others as well as itself this is an aspect of more limited relevance. I have also noted that the quota deduction arrangements, which were imposed as a result of the practice of under declaring the landings of fish coming to light, have had no impact on the present accused.
On the other hand I recognise, as Mr Macara invited me to do, that the company has fully co-operated with the investigating authorities and has demonstrated a responsible attitude in responding to the investigation by offering to plead guilty at an early stage.
In the case of this accused, as in the previous cases I was dealing with I have allowed a discount of about one third of the fine which I would otherwise have imposed.
Balancing each of the factors mentioned as best I can the fine after discount which I shall impose is one of £240,000."