Free Wild Loch Fishing

There is a body of thought that there is free loch fishing for wild brown trout in Scotland, in some cases there is. However, be prepared for the full force of the law to be taken against you by the repirian land owner bordering onto the lochs.


Unlike other countries (including England and Wales) Scotland at the present moment in time has no State licensing system for fishing.


It is however a criminal offence to fish for salmon without legal right or written permission and generally it is a civil offence to fish for other fishes.


Details of the most significant statutes that apply are given below.


Much of this information was derived from "The Law of Game, Salmon & Freshwater Fishing in Scotland" by Stanley Scott Robinson*. It is not be taken as a definitive description of the laws. Relevant Acts should instead be consulted.


* The Law of Game, Salmon & Freshwater Fishing in Scotland. Stanley Scott Robinson. Published by Butterworths and the Law Society of Scotland, 1990.


Salmon


Definition Section 24(1) of the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951 defines salmon as:


"Salmon" includes all migratory fish of the species Salmo salar and Salmo trutta and commonly known as salmon and sea trout respectively or any part of any such fish"


Ownership of and access to salmon fishing


Ownership


Until captured, salmon are wild animals. Once captured, the salmon belongs at common law to the captor. However, numerous statutes forbidding the taking of salmon without right or written permission, and forfeitures imposed by statute, have made possession of salmon safe only where they have been taken by lawful means. Nevertheless, the basic position is that it is not the salmon but the right to fish for them that is owned.


Thus, nobody may fish for salmon in rivers or estuaries or in the sea within territorial limits without permission of the Crown or the party vested in the Crown rights. In many cases in rivers, estuaries and in the sea, the rights have been granted to private individuals, companies, local authorities and others.


Salmon fishing rights are heritable titles and may be held separately from ownership of the land or may have been given along with ownership of the land. Where the right is held separately from the land, the proprietor of the right has an implied right of access for the purpose of exercising his right to fish for salmon.


The fishing right must be exercised in such a way that it causes the least prejudice to the rights of the riparian owner.


The right to fish for salmon carries with it the inferior right to fish for trout but this right must not be exercised in a way that will interfere with the rights of the riparian owner.


Access


Section 1 of the 1951 Act (as amended by the Salmon Act 1986) states:


"If any person without legal right, or without written permission from a person having such right, fishes for or takes salmon in any waters including any part of the sea within one mile of mean low water springs, he shall be guilty of an offence ......"


Thus, access to salmon fishing is available only to the owner of a salmon fishery or with the express, written permission of the owner. The owner may attach conditions to the permission, such as method, location, times available etc. The owner may not, however, give permission to do anything that is unlawful. No rod licence is required. Access to rod fisheries for those without right is thus by private agreement with the owner.


Access is widely available throughout Scotland but costs involved depend on a number of factors, including catch expectations, whether accommodation is attached, whether a ghillie is provided and so on.


Regulations


Weekly Close Times


The prohibition of fishing for salmon during the weekly close time is contained in section 13 of the 1951 Act, as amended by the Freshwater and Salmon Fisheries (Scotland) Act 1976 (section 7 and Schedule 3) and the Salmon (Weekly Close Time) (Scotland) Regulations 1988 (SI 1988/390) made under the terms of section 3(3) of the 1986 Act.


Angling - the weekly close time for rods is Sunday



Annual Close Times


Section 6(1) of the 1986 Act requires that the annual close time shall be a continuous period of not less than 168 days and is to apply to every mode of fishing for or taking salmon except during periods within the close time when it is permitted to fish by rod and line. The annual close time for the River Tweed is a continuous period of not less than 153 days.


The exact dates of annual close times vary between Salmon Fishery Districts but are generally from about the end of August to mid February.


The close seasons for most Salmon Fishery Districts date from byelaws of 1864 and 1865 made under section 6(5) of the Salmon Fisheries (Scotland) Act 1862. That Act was repealed by the 1986 Act but the byelaws were preserved. Close seasons for other Districts have been defined in Statutory Instruments relating to the Districts concerned.


Under the terms of section 6 of the 1986 Act, the Scottish Ministers may prescribe for any district the dates and times of the annual close time (although it may not be made less than 168 days), and the periods within that close time when it is permitted to take salmon by rod and line, and may make different provisions for different parts of the district.


Fishing by rod and line


Section 24(1) of the 1951 Act, as amended by section 8(6) of the 1986 Act, defines rod and line as: "single rod and line with such bait or lure as is lawful at the passing of this Act and, in the case of fishing for salmon in an area to which and at a time during which regulations made under section 8 of the Salmon Act 1986 apply, is not specified in such regulations in respect of that area and time".


This definition has been taken to preclude the use of double rod fishing, cross line fishing, set lines, otter fishing, burning the water etc as proscribed in the Trout (Scotland) Act 1860, which was repealed by the 1951 Act.


Application may be made by a District salmon Fishery Board to Scottish Ministers to make regulations specifying baits and lures that may not be used in its district. The proposal may apply for different times when and areas where the regulations take effect. Eighteen Orders specifying baits and lures have been made, usually to prohibit the use of shrimps, prawns or worms as bait and the use of lures bearing multiple sets of hooks.


Freshwater Fish


Definition


Section 24(1) of the 1951 Act defines freshwater fish as: "


"Freshwater fish" means any fish living in fresh water, including trout, and eels and the fry of eels, but exclusive of salmon and of any kind of fish which migrate between the open sea and tidal waters;"


Section 24(1) of the 1951 Act defines trout as: "


"Trout" means non-migratory trout of the species Salmo trutta living in fresh waters or estuaries;"


Ownership


Private waters


Until captured, freshwater fish are wild animals. Once captured, the fish belongs at common law to the captor. However, the legal right to take such fish as can be captured belongs to the proprietor of the land which is contiguous to the river, stream or loch in which the fish are to be found. Thus, although there is no right of property in the fish before capture, only the proprietor of the lands or those authorised by him, have the right of fishing for them.


Except in the case of waters subject to a Protection Order and in the waters entering the Solway, protection of the fishing right depends upon the common law of trespass. The remedy of a proprietor or occupier against an unauthorised fisherman is to order him from the locus, and, in the event of refusal or threatened repetition, to initiate an action of interdict.


The broad principles involved are:


No one has any right to trespass upon the lands of another for the purpose of fishing;

No one, even if he is lawfully on the bank of a river or loch under a right of access, has the right to fish in the river or loch;

Members of the public, having neither title nor right, cannot establish a right by any usage of fishing for however long a period, as against a proprietor having title to the land over which the stream flows.


These are principles of civil law and can be enforced only in civil proceedings.


Apart from in the Solway and where Protection Orders are in force, there is only one case where unauthorised fishing by a trespasser can be made the subject of criminal proceedings, and this is under the Theft Act 1607. The Act applies to an ordinary fish pond, or "stank", enclosed all round where the fish may no longer be said to be feeding in a state of nature. It applies to any artificial pond or reservoir which has been stocked by the owner and which has neither inlet nor outlet.


Any person removing trout from a stank without authority from the owner or occupier of the land surrounding it is guilty of theft. It is open to question whether anyone taking fish from an ordinary river or stream which has been stocked is guilty of theft.


In the case of a loch acquired by a Water Authority, a previous owner may reserve rights of fishing but the fishing must not be done in such a way that it will interfere with the purity of the water.


Public Waters


Public waters are those which are both navigable and tidal. The tide must ebb and flow at the point where the right is claimed and the right extends up rivers as far as ordinary spring tides.


Fishing for Freshwater Fish


In general, the only permitted method of fishing for freshwater fish is by rod and line as defined in Section 24(1) of the 1951 Act, as amended by section 8(6) of the 1986 Act.


However, under section 2(2) of the 1951 Act, in any pond or loch, where all proprietors agree, a right of fishing for trout by net may be exercised, and in any inland water, a proprietor or occupier having a right of freshwater fishing may take any freshwater fish other than trout by means of a net or trap.


Access


In general, it is not a criminal offence to fish for or take trout in Scotland. However, this does not imply that there is, as some would assert, a free right to fish anywhere. The rights of riparian owners are protected by principles of civil law and permission should be sought before fishing.


There are some differences in relation to waters flowing into the Solway Firth. Section 9 of the Solway Act 1804 (this section is still in force) makes it an offence to fish for salmon or other fish without permission. However, this no longer applies to the River Annan and Border Esk. The 1951 Act is usually used in the case of salmon.


Protection Orders


Protection Orders may be made under the 1976 Act. Section 1 of this Act states that:


"Where Scottish Ministers are satisfied that, if proposals submitted under this section were implemented, there would be a significant increase in the availability of fishing for freshwater fish in inland waters to the which the proposals relate, they may, subject to subsection (3) below, make an order (in this Act referred to as a "Protection Order");


" Thirteen Protection Orders are currently in force. The locations of the areas covered are shown on the map.


Principal statutory offences relating to fishing for freshwater fish.


Where a Protection Order is in operation, it is an offence to fish for or take fish from inland waters in the prescribed area without legal right or written permission from the person having such right. (Freshwater and Salmon Fisheries (Scotland) Act 1976)


Where a Protection Order is in operation, it is an offence to contravene any prohibition contained in that order or to attempt to commit such an offence or do any act preparatory to the commission thereof. (Freshwater and Salmon Fisheries (Scotland) Act 1976)


Where a Protection Order is in operation, it is an offence to wilfully obstruct or refuse to allow a warden or other authorised person to exercise his statutory powers of enquiry, entry and seizure. (Freshwater and Salmon Fisheries (Scotland) Act 1976)


It is an offence to fish for or take freshwater fish in inland waters other than by rod and line.


The use of double rod fishing is unlawful. (Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951) It is an offence to fish for trout during the annual close time, which is between 7 October and 14 March.


This offence and the offence of having trout in possession during the annual close time does not apply to the owner, occupier or lessee of any water where trout are kept in captivity or artificially reared and fed, or any employee there for that purpose, or to any person to whom such fish have been consigned for e.g. stocking. (Freshwater Fisheries (Scotland) Act 1902, amended by Trout (Scotland) Act 1933)


Subject to the above, having trout in possession during the annual close time is an offence. (Freshwater Fisheries (Scotland) Act 1902, amended by Trout (Scotland) Act 1933)


It is an offence to possess non-migratory trout or instruments, poisons or explosives which could be used for taking trout, in circumstances which afford reasonable grounds for suspecting that the accused had obtained possession of such trout or the instruments etc as a result or for the purpose of committing an offence against sections 1-4 of the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951


It is an offence for any owner, occupier or lessee of water where trout are kept in captivity and artificially reared and fed to take any trout during the annual close time except for scientific or breeding purposes or for removal to other waters. (Freshwater Fisheries (Scotland) Act 1902, and Trout (Scotland) Act 1933)

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