Statutory guidance

Compliance and Enforcement Strategy

Updated 2 June 2020

Marine Management Organisation Monitoring of Compliance and Enforcement Strategy

1. Introduction

The Draft Environment Bill sets out how on departing from the EU, The United Kingdom’s environmental monitoring and environmental protections will exceed those currently applied under Domestic and European Union legislation. In addition DEFRA has a launched a 25 year environment plan with the intent of leaving the environment in a better state for future generations. In light of this the Marine Management Organisation (MMO) an executive non departmental public body sponsored by DEFRA, has taken the opportunity to revise and update its own monitoring of compliance and enforcement strategy to ensure that the environment, public health, and legitimate uses of the sea is properly protected.

The MMO was established by the Marine and Coastal Access Act 2009. The MMO’s general objective is to license, regulate and plan marine activities in the seas around England so that they are carried out in a sustainable way. By doing this, the MMO seeks to provide assurance to the public that through our regulatory processes, we will ensure that any development in, or resources extracted from the sea (including fish) are done so sustainably. In practical terms the MMO has a wide remit and is responsible for delivering legal functions concerning the protection of the marine environment and protected species, marine spatial planning, the licensing of marine activities and development, sea fisheries monitoring, quota and effort management, and fisheries enforcement and controls. The MMO also exercises functions relating to Harbour authorities. As a consequence of this broad range of functions, the stakeholders whose activities we regulate are similarly varied. Therefore, our monitoring of compliance and enforcement activities apply to corporations, partnerships and individuals.

This document sets out the MMO’s overall approach to facilitating and achieving compliance across all areas that the MMO regulates but in particular marine licensing and fisheries management. It provides information about the general principles the MMO will follow for the information of those affected parties and others with an interest in the MMO. Where applicable the MMO has published subsidiary policies which detail an enhanced approach to the compliance of regulated activities.

The MMO’s monitoring and enforcement functions relates predominately to English waters. However, the MMO also has responsibility for the activities of UK registered fishing vessels in the rest of the world and for the control of Illegal, Unreported and Unregulated (IUU) fishing activities that occur within the UK.

The MMO uses the various monitoring and enforcement measures at its disposal to endeavor to ensure protection of the marine environment, and that no party engaged in regulated activity gains an unfair market advantage by breaking the rules and that honest and law abiding people, organisations and industry are not disadvantaged by being compliant.

The MMO intends over time to develop a trusted customer model which will benefit those persons, companies and industry members whose businesses are conducted wholly or partially within the marine environment in a compliant manner. This strategy will help the MMO to build a reliable database of evidence of compliance and non- compliance which in turn will inform the effectiveness, consistency and proportionality of the MMO’s regulation.

If enabled under legislation MMO will seek to recover the costs incurred for all monitoring activity, as defined in section 3 below, if it is deemed appropriate to do so.

2. Better Regulation Principles and the MMO’s Approach to achieving Compliance

The MMO works in accordance with the Hampton Principles of Better Regulation as set out in the Regulators’ Compliance Code and the Legislative and Regulatory Reform Act 2006 (as amended).

The MMO will also take into account the principles as set out in the Investigators’ Convention (2009) and the Prosecutors’ Convention (2009). These principles set out below are drawn from the Legislative and Regulatory Reform Act 2006 and the Regulators’ Compliance Code and are laid out here together with explanation as to their relevance to the MMO undertaking its regulatory functions.

In carrying out the functions delegated to it, the MMO will use its best endeavors to ensure that monitoring activity is:

I. Proportionate - Any action taken by the MMO, including monitoring, compliance or investigation, is proportionate to specific, identified, risk or need for MMO’s intervention.

II. Targeted - Those involved in high risk marine activities, those carrying out activity in high risk areas such as in or adjacent to a marine protected area, those involved in novel or complex activities, and/or those with a previous history of non - compliance can expect a greater level of monitoring.

III. Accountable - The MMO is accountable for its regulatory activity – to its stakeholders, its parent department, Ministers, the public at large and the courts;

IV. Consistent – The MMO’s s actions are consistent, in that it should make similar (but not necessarily the same) decisions about activity in similar circumstances, in accordance with its delegated responsibilities, statutory objective and guidance;

V. Transparent – The MMO’s regulatory actions are transparent, by publishing information to its regulated stakeholders indicating how it will, for example, process applications for licenses and what enforcement action it can take and may take in appropriate circumstances (for example by publication of this document); and

VI. Statutory - When considering undertaking monitoring and compliance checks or enforcement action the MMO will have due regard to the principles contained in section 2 of the Environment (Principles and Governance) Bill when enacted.

3. Pathway to compliance

The approach taken by the MMO to facilitate compliance across industries and users of the marine environment will be to adopt the principles of, inform, educate and enforce. Our regulatory interventions which enact these principles are as follows:

Guidance. The MMO works to try to ensure that all parties understand what rules apply to their particular industry (or part of it) and the rationale for the regulation being necessary. Where people, organisations and industry are not aware of the rules that apply to them, or require further guidance to ensure they are compliant, the MMO will assist by providing guidance and will raise awareness, where possible, as a first step to achieving compliance. When new or complex legislation or rules are introduced, the MMO will endeavor to ensure that there is an appropriate education period where regulatory effort will be focused on guiding industry and providing clarity to enable compliance. Guidance documents in relation to all areas of the MMO’s business can be found on GOV.UK.

Monitoring

The MMO will undertake monitoring through desk based review of information submitted by the licence holder or site based inspection to measure the level of compliance with the terms and / or conditions set by MMO as the regulator to support the regulated to comply with their legal requirements.

Monitoring may include determining whether the holder of a licence is complying with any conditions attached to that licence (as set out under section 2 of The Public Bodies (Marine Management Organisation) (Fees) Order 2014. Monitoring will also include ensuring that other activities are being carried out in a manner which complies with the overarching regulatory framework. Where we undertake monitoring activities, we will seek to place the minimum burden on our regulated stakeholders, except to the extent that it is believed necessary to achieve compliance and, in doing so, pay particular attention to the burden on the many small businesses we are responsible for regulating.

This monitoring may take the form of:

• Administrative. This would include an administrative check of automated licence granted to ensure any requirements are met. It may also include, where appropriate, the use of digital systems to enable those regulated to self-monitor.

• Assessment of data and information. This would include reviewing data which is provided by users as part of any condition or licence to assure that the necessary data submissions or returns are correct. This could include cross-checks against another separate data source to verify the information.

• Inspections. This would include inspections from Marine Enforcement Officers (MEOs) to premises and vessels in order to undertake checks that the required licence conditions, or any legislative requirements are being adhered to. The requirement to undertake inspections will be varied. For example, more routine inspections will be required to provide necessary checks and balances on the fishing industry to ensure that legislative rules which underpin the requirements to demonstrate the sustainability of activities, and traceability of fish, are complied with. Such checks provide assurances to consumers, and wider public. More targeted inspections will also be required where the MMO’s risk and intelligence processes indicate that there are compliance issues which need to be addressed.

Where monitoring identifies minor infringements and in order to secure compliance the MMO will use the following tools:

• Oral Advice This will take the form of simply informing the regulated person what needs to be done or changed to be compliant.

• Advisory Letter or Report Where it is believed that minor regulatory breaches may have been committed and it is appropriate to do so, an advisory letter or report may be sent setting out the minor infringements and reminding the regulated person(s) of the need to address the issue. This may be sent without prejudice to other purely civil remedies.

On the occasions where the above tools do not resolve the compliance issue; the matter will be investigated in line with MMO’s Risk Based Enforcement Process.

4. Enforcement Options

Enforcement is where a formal investigation is undertaken to establish whether a regulatory or legislative breach has taken place regardless of whether enforcement action is taken against any person by the MMO under statutory or common law powers; but does not include oral warnings or advisory notices designed to educate and help stakeholders achieve compliance. ;

The range of enforcement tools which the MMO may use in order to achieve compliance in relation to its functions are set out below:

Marine Licenses

Statutory Notices under the Marine and Coastal Access Act 2009

The MMO has the ability to issue a variety of notices in relation to marine licensable activities. These are:

• Stop notices
• Emergency safety notices
• Remediation notices
• Variation notices
• Revocation notices
• Suspension notices

The appeal mechanism for the notices are set out in the Marine Licensing (Notices Appeals) Regulations 2011.

Marine Licenses and Fisheries Management

Official Written Warning

Where there is evidence that an offence has been committed but it is not appropriate to implement formal prosecution proceedings, an official written warning letter may be sent to the regulated person(s), outlining the alleged offending, when it occurred and what regulation(s) were breached. It will also set out that it is a matter which could be subject to prosecution should the same behaviour occur in the future. This may be sent without prejudice to other purely civil remedies.

Fisheries Management

Financial Administrative Penalties

The MMO may issue a financial administrative penalty (“FAP”), the level of which may be up to £10,000 (see The Sea Fishing (Penalty Notices) (England) Order 2011)1 as an alternative to criminal prosecution in certain circumstances. A FAP may only be issued where there is evidence of offences committed, and may be issued to the owner, skipper and/or charterer of an English or Welsh vessel wherever it operates, or of a foreign fishing vessel operating within the English and Welsh part of British Fishery Limits. Payment of the penalty will discharge the possibility of the MMO prosecuting the offence. However if a FAP is not paid within the required timescale (28 days), the matter will proceed to court (note that non-payment of the FAP is not an offence).

Other Enforcement Powers Available to the MMO

• Seizure and disposal of offending goods and fish – certain provisions provide for seizure and disposal of goods and fish e.g. of illegal fishing net attachments or undersized fish.
• Imposition of conditions on operating –such as a condition applied to a licence.
• Carrying out of remediation in default of action by the recipient and recovering costs.
• Variations of a licence or permit – e.g. in relation to activity licensed e.g. port development.
• Revocation of licence or permit – e.g. for fishing.

Marine licensing and Fisheries Management

Criminal Prosecution

Where appropriate and following application of the tests in the Code for Crown Prosecutors, the MMO may institute prosecution proceedings. Further information about prosecutions is set out below.

When instituting criminal proceedings, the MMO will select the most appropriate charges, which may include those under general criminal law for example; if prosecuting for fraud in relation to a grant application under the European Maritime Fisheries Fund

Sanctions under the Illegal Unreported and Unregulated fishing regime

The UK legislation is The Sea Fishing (Illegal, Unreported and Unregulated Fishing) Order 2009. The MMO will work with the EU Commission and other Member States and Third Countries to identify and address IUU activities, and will use the tools available under both the EU and UK law including blacklisting of vessels which are engaged in IUU activities.

Proceeds of Crime proceedings

Where appropriate, following conviction of persons for significant acquisitive crime, the MMO may consider instigating proceedings under the Proceeds of Crime Act 2002 to deprive offenders of the unlawful benefit of their criminal activity.

Points for Serious Infringements

Upon conviction a vessel licence or the master may attain a number of points. European Law classifies breaches of fisheries rules into a number of serious infringement categories and each of these may attract a different number of points, upon conviction which can be attributed to a vessel licence and will remain on the licence for a period of three years from the date of the offence. Once a vessel attains a certain level of points, the licence will then be suspended for a specified period of time and in the most serious of circumstances, the licence may be rescinded. Under a similar vein, points are also attributable to master who has been convicted of a serious infringement and will be published on a public register, on accrual of set levels of points, the master may be disqualified.

5. Conduct of investigations

The MMO has a range of powers available to it in order to assist in the prevention and investigation of offending, many of these powers are common to the investigation of suspected offences relating to wildlife and environmental matters as well as fisheries. Some of the more frequently used powers are:

• The power to enter and search business premises and, in exceptional circumstances, dwellings.
• The power to require production of and to inspect documentation.
• The power to seize items, including computers, where necessary
• The power to board and inspect fishing vessels.
• The power of forfeiture in respect of fish and fishing gear suspected to be unlawful.
• The power to detain vessels or marine installations.
• The power to monitor licensed activities or development to ensure compliance with licence conditions.

This is not an exhaustive list of powers available to the MMO, but an example of some of the more commonly-used powers. The MMO will exercise its powers appropriately and exercise due restraint to ensure use is proportionate to the particular circumstances.

The majority of the MMO’s powers derive from the Marine and Coastal Access Act 2009 and the Sea Fisheries (Conservation) Act 1967. Investigations will be carried out by Marine Officers in accordance with the Criminal Procedure and Investigations Act 1996 and the Codes of Conduct issued under the Police and Criminal Evidence Act 1984.

Information and evidence gained by a Marine Officer may be used in furtherance of one of the Enforcement Options set out above. In some circumstances, information or evidence obtained by our officers in the exercise of their duties may be shared with other Government bodies or agencies.

6. Prosecutions

Criminal prosecutions are an important tool in discouraging non-compliance; the purpose is to secure conviction and ensure that the wrongdoing can be punished by a Court at an appropriate level, thus acting as a deterrent to any future wrongdoing to both the offender and others who may engage in similar criminal behaviour.

It will be used where the offending is considered to be particularly serious, is repetitive, may cause significant harm to the environment, has resulted in significant unlawful profit, has caused a disruption of the market concerned – and therefore disadvantage to other legitimate operators – or where it is otherwise necessary in all the circumstances relating to the alleged offending and the offender.

A prosecution may be commenced where it is felt that the matter is too serious or not suitable for another form of disposal such as an official written warning or fixed administrative penalty. In order to prosecute, the prosecutor has to be satisfied both that there is sufficient evidence of the alleged offending and that there is a clear public interest in taking criminal proceedings.

As a public prosecutor the Marine Management Organisation takes account of the principles set out in the Code for Crown Prosecutors the code, last updated in October 2018.

The code sets out a two stage test for prosecutors to consider;

Sufficiency of Evidence

The MMO will only commence a prosecution if it is satisfied that there is a “realistic prospect of conviction” against each suspect on each charge on the available evidence. If a case does not pass this test, it will not go ahead regardless of how important or serious it may be.

If, and only if, the case passes the sufficiency of evidence test, will the MMO move on to consider the second stage of the test Public Interest

Where there is sufficient evidence to justify a prosecution, the MMO will go on to consider whether a prosecution is required in the public interest. Assessing the public interest is not simply a matter of adding up the number of factors on each side and seeing which side has the greater number. Each case must be considered on its own facts and on its own merits. An assessment of the public interest may lead to the MMO to conclude that a prosecution is not required in the public interest which could be properly served by a disposal short of prosecution such as a fixed administrative penalty or official written warning.

Companies and Company Office Holders

Criminal proceedings may be commenced against all those persons suspected of the offence(s). Where there is sufficient evidence and it is in the public interest, proportionate and appropriate to do so, the MMO may commence proceedings against companies or other bodies liable for offending and company directors or other statutory office holders, where we conclude there is evidence of personal liability.