Summary: Mr B says the Authority’s decision to prosecute his company was flawed at the outset; we find no fault in that action. We find the Authority failed to acknowledge Mr B’s correspondence, and it could have responded and managed Mr B’s expectations at that stage, which might have avoided some of Mr B’s frustration and distress. The Authority will apologise for this fault.

The complaint

1. The complainant, who I will call Mr B, says the Authority failed to follow its processes when making its decision to prosecute his company. Mr B says the decision to prosecute went against long standing legal advice stating aquaculture mussels raised off the sea-floor could be pursued without a North Western Inshore Fisheries & Conservation Authority (NWIFCA) permit. So, Mr B says the decision to prosecute was flawed at the outset, and the actions taken thereafter led to his company suffering a financial loss through loss of stock and legal costs.
2. Mr B says when deciding to prosecute, the Authority failed to follow the Constitution and Compliance and Enforcement Strategy/Customer Charter and did not adhere to Service Standards. Mr B said the Authority’s failure to communicate with him caused him distress, and had they entered dialogue the flawed legal action could have been prevented. To put things right, Mr B would like the Authority to answer his letter of 11 June, hold a disciplinary tribunal of the officers involved, review its Constitution and relevant policies to see whether any amendments are needed, and to pay at least £2000 for his direct financial losses.

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What I have investigated

3. I have investigated the Authority’s actions prior to its decision to prosecute.

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The Ombudsman’s role and powers

4. There are 10 sea fisheries and conservation authorities surrounding the coastline of England, established by the Marine and Coastal Access Act 2009. Their function is to manage exploitation of sea fisheries resources. Councils are represented on the authority and they are funded by councils, largely through a Government grant. These committees are within jurisdiction as a committee mentioned in s101(9) of the Local Government Act 1972. The body in jurisdiction is the sea fishery and conservation authority itself.
5. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
6. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
7. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

8. I considered:
• Information provided by Mr B.
• Information provided by a solicitor acting for NWIFCA.
• NWIFCA’s constitution, and enforcement policy.
• Relevant law and guidance as referred to in the body of the statement.
9. Mr B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

10. Aquaculture is defined in the Common Fisheries Policy as meaning the rearing or cultivation of aquatic organisms using techniques designed to increase production of the organisms in question beyond the natural capacity of the environment.
11. Mr B’s aquaculture company culture both oysters and mussels in an area managed by the North Western Inshore Fisheries & Conservation Authority (NWIFCA). Mr B’s company use trestles and ropes to cultivate oysters and mussels above the sea floor. Other fishing companies in the area gather shellfish from the sea floor if they have a permit from NWIFCA.
12. For many years there has been an issue between Mr B and NWIFCA about mussels. In 2014 at a NWIFCA meeting Mr B says his is an aquaculture business not a fishery and NWIFCA should get legal clarity on its stance about mussel clearing from his trestles.
13. In 2015 NWIFCA had legal advice. It said it is up to any party challenged to demonstrate that as a matter of law he is not bound by the NWIFCA byelaws. The legal advice recommended to the owners of the land (who Mr B leases from) that if they wish to establish as a matter of authority an exclusive right to take mussels from its land or part of it then it should apply for a several order under section 1 of the Sea Fisheries (Shellfish) Act 1967. However, the advice stated that molluscs contained within or on fixed installations can be pursued without any several order or byelaw consent as they are private property. The advice stated the clearance of mussel seed around installations would always need NWIFCA consent.
14. NWIFCA’s solicitor wrote to another firm of solicitors (who I assume act for the landowners of the area where Mr B’s business is). The letter stated NWIFCA would apply the byelaws except those which are vested for the time being in the grantee of a several order under section 1 of the Sea Fisheries (Shellfish) Act 1967. The letter stated NWIFCA may apply the byelaws irrespective of any claim to several fishery.
15. I have no evidence the landowner applied for and received a several order. Mr B says they did not need to do so because the Sea Fisheries (Shellfish) Act 1967 gives a private shellfish bed the same protection that a several order does.
16. In January 2020 NWIFCA issued an advisory letter to Mr B because he had set mussel ropes without a permit. In June NWIFCA issued a Financial Administrative Penalty Notice seeking a penalty of £500. It said Mr B was in breach of NWIFCA Byelaw 3 because Mr B had laid mussel ropes for the purpose of retaining seed mussel from the fishery without a permit to fish for cockles and mussels.
17. Mr B contacted NWIFCA following the advisory letter but received no reply. Mr B explained they only took mussel seed from their private property (the mussel ropes or oyster frames) and not from the sea floor, so did not consider they were in breach in accordance with previous contacts with NWIFCA. Mr B referred to the 2015 legal advice.
18. NWIFCA did not respond, Mr B did not pay the fine, so NWIFCA started legal action.
19. When an officer suspects that a person or business has committed a serious breach of fisheries legislation, it will conduct a thorough investigation in accordance with the Police and Criminal Evidence Act (PACE) and in considering whether enforcement activities is required it will adhere to the Code for Crown prosecutions. NWIFCA says once the officer started investigation they had to act in accordance with PACE.
20. I am not looking at the decision to take legal action, or what happened thereafter. I am considering what happened prior to this, as Mr B says there was fault in NWIFCA’s process.

Change of stance

21. Mr B says NWIFCA knew for many years that he was putting out mussel ropes but took no action. Mr B says NWIFCA had legal advice that its byelaws did not apply to aquaculture activities prior to it commencing court action. Mr B says at the time NWIFCA decided to change its stance and apply Byelaw 3 to his operations it should have communicated that to him.
22. NWIFCA says previous correspondence was about permits to clear mussels from around the trestles and it did not know Mr B was putting out ropes to grow mussels. NWIFCA says once it started investigating it had to act in accordance with the Police and Criminal Evidence Act 1984 (PACE).
23. Mr B’s complaint is not about how NWIFCA conducted the legal proceedings, it is about what happened before that. At a meeting in October 2013 NWIFCA document Mr B grows self-seeding mussel ropes from this area and pays a levee on any mussels sold. It is evident NWIFCA was aware for some time that Mr B produced and sold seeded mussel ropes and took no action on the issue. Mr B’s query is ‘what changed’, and NWIFCA has not answered that.
24. At the time NWIFCA served the advisory letter it says it genuinely thought it had grounds to do so. NWIFCA says there is no issue with mussels which have settled on existing structures, but there is if Mr B is purposefully farming mussels without a permit. Mr B replied to the advisory letter and referred to the previous legal advice which said molluscs contained within or on fixed installations can be pursued without any several order or byelaw consent as they are private property. Mr B says the ropes are installations on private property so can be pursued without byelaw consent.
25. Mr B and NWIFCA have interpreted the 2015 legal advice differently regarding whether it applies only to existing structures for the purpose of his oyster farming business, and it is not for me to say which interpretation is correct.
26. Evidence shows NWIFCA knew prior to this advisory notice that Mr B was using ropes to grow mussels. Arguably NWIFCA was at fault in not acting sooner if it considers the mussel ropes are a breach of a byelaw. That does not cause a significant injustice to Mr B but did give the impression his actions were allowed and so it was a shock when he got the advisory letter. The fact NWIFCA has not taken any action previously does not prevent it from ever doing so.
27. If NWIFCA believes there is a breach it must act under PACE to investigate it, and that is what it did. It served an advisory letter based on a professional officer’s opinion there was a breach having witnessed the ropes. This was an action they were entitled to take when they thought there was a breach of a byelaw and there is no reason for me to question or criticise it given it was based on an officer witnessing what they thought was a breach.
28. Although I appreciate the advisory letter came as a shock to Mr B, I cannot see there was any requirement for NWIFCA to contact Mr B and discuss its concerns before issuing the advisory letter so I cannot say that was fault. The enforcement process is considered later in this statement.
29. However, when Mr B responded to the advisory letter setting out why he did not think he was in breach, I consider NWIFCA could and should have considered Mr B’s arguments and decide whether to continue. NWIFCA says Mr B’s arguments did not change its view because its interpretation is that the byelaw would not apply to mussels attached to existing structures, but the issue was Mr B was setting ropes for the specific purpose of farming mussels which then affects the likelihood of mussels growing naturally elsewhere, and the byelaw applies to that activity. Therefore, whilst I don’t have evidence to show NWIFCA considered Mr B’s arguments at the time, given the explanation now given it is unlikely it would have changed the decision to pursue to a Fixed Administrative Penalty.

Failure to respond to correspondence

30. Following the advisory letter Mr B sent three e-mails which NWIFCA did not respond to. Mr B says the Customer Charter and Service Standards states “If you contact us by letter, by email or by leaving a voicemail message: We will acknowledge receipt of your enquiry in writing as soon as possible.”
31. NWIFCA says rather than responding to the emails the officer visited Mr B. NWIFCA says it is entitled to depart from its policies in legal proceedings and acting under PACE took precedence.
32. Mr B says he thought the meeting would be an opportunity to discuss the points he made in his e-mails, but it was not, the officer came to caution him under warrant. NWIFCA says this was an opportunity for Mr B to put forward his formal defence. Mr B says the meeting was only arranged the day before and NWIFCA did not say it was a PACE interview, so he did not have the chance to properly formulate his defence.
33. I find NWIFCA should have considered whether the points Mr B made in response to the advisory letter changed its view on the breach. I have no evidence it did so, or how it decided it was necessary to continue to formal action. However, NWIFCA has now given a clear explanation so it seems likely the outcome would have been the same.
34. I find NWIFCA could and should have acknowledged Mr B’s correspondence, I do not consider that would have interfered with PACE procedures. NWIFCA may not have wanted to get drawn into discussions of the points if the points would be considered via the formal process, but good customer service would still be to acknowledge the correspondence. NWIFCA also could have managed Mr B’s expectations by clarifying the process to Mr B and explain it was not now possible to enter informal discussions, but it would consider his formal representations and advise if anything he said stopped the legal process continuing.
35. I find NWIFCA missed an opportunity to potentially prevent the legal action, had it considered the points Mr B raised in response to the advisory letter. However, I note NWIFCA says it would not have changed its views and has explained its reasons as stated earlier in this statement. I also note the points raised by Mr B are different to that put forward by his legal advisors, which relied on section 33 (1) of the Fisheries Act 1981 and was a different argument to that put forward in Mr B’s e-mails. Therefore, it is likely even if proper consideration was given to Mr B’s e-mails, it would have resulted in the same outcome and NWIFCA would still have proceeded to formal action. The case was withdrawn as soon as the different argument was put forward.

Failure to understand the law

36. Mr B says NWIFCA should fully understand the law it is relying on.
37. NWIFCA accepts it missed the legal argument made by Mr B’s solicitor, but acted in good faith at the time, believing Mr B had breached a byelaw. NWIFCA’s solicitor also thought there was a case to answer. NWIFCA’s solicitor says the argument relied on was not widely known across any of the 10 IFCA’s in England.
38. When Mr B’s solicitor put forward the legal argument, which was explained differently to Mr B’s previous correspondence, NWIFCA accepted that and withdrew the case. NWIFCA’s solicitor says it is still possible they may have secured a conviction, however decided it was no longer in the public interest to continue given the new argument and it was less than likely to succeed.
39. In any role human error can always occur. I do not find fault that NWIFCA missed this piece of legislation, given its legal advisors did not pick up on it, and it seems it was not known by professional officers carrying out the same role in identical organisations around the Country. I am satisfied it acted properly and promptly when it was brought to its attention.

Failure to consult with the Chair and Vice-Chair

40. Mr B says In the NWIFCA Constitution it states in the table of delegations: Chief Executives Officer: Responsibilities and Functions, 6. Instigating and taking legal proceedings for offences under all legislation which empowers the Authority to take legal proceedings, after consultation with the Chair and Vice-Chair of the Authority.
41. Mr B says the officer told the Chair they were starting legal proceedings, but that is not consultation. NWIFCA says there was discussion between the Chair and relevant officers before it advised the Chair of the proposed prosecution.
42. I have no evidence of any consultation between the Chief Executives Officer and the Chair and Vice-Chair of the Authority about taking legal proceedings. Therefore, NWIFCA appears not to have acted in accordance with its Constitution and that is fault. However, I cannot conclude this causes Mr B injustice as I cannot say the outcome would be any different had that consultation taken place. There is no evidence that when advised of the legal proceedings the Chair raised any concern or asked officers to take a different action.

Enforcement process

43. Mr B says in the Compliance and Enforcement Strategy under the Sanction Policy Statement and then Enforcement Options, it states:

“We will endeavour to achieve compliance through education, advice and guidance wherever possible, we will use appropriate and proportionate action (including enforcement if necessary) where this has not been successful. The range of enforcement tools which the NWIFCA may use in order to achieve compliance are set out below:

Oral Advice or Verbal Warning, Advisory Letter, Official Written Warning, Fixed Administrative Penalties, Seizure and Disposal.”

44. Mr B feels NWIFCA did not give any education, advice, or guidance, and instead went straight to formal enforcement.
45. The above outlines a range of enforcement tools available to officers, and it will be down to their professional judgement as to which is the appropriate and proportionate tool to use. The decision to issue an advisory letter and then a Fixed Administrative Penalty was a decision taken by a professional and experienced officer. The action was endorsed by NWIFCA and by its legal advisors. There is no reason for me to question or criticise the professional decision of the relevant officer to issue an advisory letter, even though Mr B disagrees with it.

Loss of shellfish

46. Mr B says NWIFCA asked him to bring the seeded mussel ropes into the yard from the sea. In doing so the shellfish died and he lost the revenue he would have made from selling them on. Mr B says this was against the law.
47. NWIFCA says it acted under the Marine and Coastal Access Act 2009 and did not break any laws.
48. It is not the Ombudsman’s role to decide on legal matters. It would be more appropriate for Mr B to take legal advice on his options to recover his alleged losses.

Was there fault causing injustice?

49. I must now consider whether there was fault in NWIFCA’s processes, which has caused an injustice to Mr B. If so, I will recommend action NWIFCA can take to acknowledge that.
50. Mr B considers there is gross misconduct by the officers in this case. The Ombudsman considers officers are acting on behalf of NWIFCA, and any findings we make are against NWIFCA rather than against individuals. We cannot get involved in matters between an employer and employee and cannot recommend disciplinary action.
51. Mr B says the decision to prosecute was flawed at the outset. NWIFCA’s interpretation of the legal advice Mr B relies on is different to that of Mr B’s interpretation. I cannot say which interpretation is correct; that is a legal matter. NWIFCA acted having witnessed what it thought was a breach of a byelaw, there is no fault in that process. The fact NWIFCA did not act previously is not evidence of fault in then doing so.
52. I find NWIFCA at fault for not considering Mr B’s correspondence in response to its advisory letter. Mr B clearly referred to previous legal advice and quoted parts of it and made a clear argument why he thought he was not in breach of the byelaw. However, it seems more likely this would not have affected the outcome. NWIFCA has explained Mr B’s arguments did not alter its views, and his legal advisor made out a different argument which is what drew a halt to proceedings. I find NWIFA should have acknowledged Mr B’s correspondence and could have managed his expectations by providing some information on the process and confirming Mr B’s formal representations would be considered. I find this has caused some frustration and distress for Mr B.
53. I find NWIFCA at fault for not consulting with the Chair in accordance with its process. But I do not find it caused Mr B any injustice, as the Chair was informed and did not ask for any different course of action.
54. I do not find any review of its constitution or policies is required, rather that relevant officers should be reminded to follow it.

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Agreed action

55. To acknowledge the impact on Mr B NWIFCA will apologise for not acknowledging his e-mail correspondence and for missing opportunities to explain the process and manage expectations. To prevent future problems NWIFCA should remind relevant officers to follow the constitution or relevant policies, or clearly record reasons for departing from it.
56. NWIFCA should complete these actions within the next month, and evidence its compliance to the Ombudsman.

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Final decision

57. I have completed my investigation on the basis the agreed action is sufficient to acknowledge the impact on Mr B and prevent future problems.

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Parts of the complaint that I did not investigate

58. I did not investigate the Authority’s decision to prosecute, or anything relating to the legal proceedings.

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Investigator's decision on behalf of the Ombudsman