Southern Inshore Fisheries & Conservation Authority v Carlin Boat Charter Ltd.

A subordinate legislative measure may be irrational where it criminalises conduct falling within its words, although the authority making it had failed to consider that category of conduct and did not intend to regulate it. The defect concerns the substance of the measure, not merely the procedure used to make it. Ministerial confirmation does not cure a defect in the measure’s making. A statutory provision making production of a confirmed byelaw conclusive evidence of its making is not an ouster clause and does not prevent a court considering whether the byelaw is ultra vires.

The appellant fisheries authority brought a prosecutor’s appeal by way of case stated against the acquittal of the respondent company at Weymouth Magistrates’ Court. The prosecution concerned the use of a vessel exceeding 12 metres in overall length for rod-and-line fishing within six nautical miles of the baselines, contrary to byelaw 17.

The district judge held that the byelaw was unlawful for irrationality. Although its wording covered charter vessels, the authority had not considered the interests of the charter angling fleet and had not intended the byelaw to apply to it. The central issue was whether those findings justified treating the byelaw as irrational.

1. Appeal dismissed. The district judge was entitled to acquit the respondent because byelaw 17 could not support the prosecution.
2. The relevant question was whether the byelaw was irrational because the committee had failed to consider its potential application to the charter fleet. The evidence entitled the district judge to find that the committee had considered only commercial fishing vessels and had not intended to include charter vessels over 12 metres.
3. Where a subordinate legislator fails to consider an obviously material matter, namely the intended scope and practical effect of the measure, that is an error of law which may be categorised as, or is akin to, irrationality. The fact that the prohibition appeared rational on its face did not answer the question if the respondent’s activities were embraced by mistake.
4. The argument that the magistrates’ court lacked jurisdiction to examine validity was rejected. Section 9(2) of the Sea Fisheries Regulation Act 1966 was not an ouster clause. The issue was whether the byelaw had created a crime by mistake, rather than whether the prescribed procedure had been followed.
5. Regulation 7(1) of the Sea Fisheries (Byelaws) Regulations 1985 made ministerial confirmation necessary, but confirmation did not cure a defect in the committee’s making of the byelaw. In the absence of evidence that the minister had positively considered whether the charter fleet should be covered, the defect remained.
6. Lord Justice Laws identified one substantive question and answered it affirmatively. Mr Justice Owen agreed. An order for the respondent’s costs out of central funds was made.

• High Court (Administrative Court): dismissed the prosecutor’s appeal by way of case stated and upheld the respondent’s acquittal.
• Weymouth Magistrates’ Court: acquitted the respondent on the ground that byelaw 17 was irrational.