Acting Chief of Police v Bryan

• Jurisdiction: Caribbean States
• Judgment Date: 10 June 1985
• Date: 10 June 1985
• Court: Court of Appeal (Eastern Caribbean States)

British Virgin Islands, Court of Appeal of the Eastern Caribbean States

(Robotham CJ; Bishop JA and Williams Acting JA)

Acting Chief of Police

and

Bryan

Relationship of international law and municipal law — Treaties — Absence of implementing legislation — Whether treaty applicable as part of municipal law — Reciprocal Fisheries Agreement between the United Kingdom and the United States, 1983 — Whether Agreement applicable in the British Virgin Islands

Sea — Fisheries — Exclusive fishing zone — Reciprocal Fisheries Agreement between the United Kingdom and the United States, 1983 — Application to the exclusive fishing zone of the British Virgin Islands

Treaties — Effect in municipal law — Whether implementing legislation required — Application to colony — Reciprocal Fisheries Agreement between the United Kingdom and the United States, 1983 — Whether Agreement overrides the Fisheries Ordinance 1979 and the rules made thereunder — The law of the British Virgin Islands

Summary: The facts:—A Reciprocal Fisheries Agreement was made between the United Kingdom and the United States of America on 27 March 1979 with an Agreed Minute of 28 April 1980. The instruments of ratification were exchanged on 10 March 1983. The Agreement was not implemented by statute in the United Kingdom but was laid before Parliament by the Foreign Secretary. The Agreement was not extended to the British Virgin Islands by an Order in Council, but was only gazetted in the Islands on 16 May 1984. The respondent, the captain of a foreign fishing boat, and another were charged with fishing in the exclusive fishing zone of the British Virgin Islands without a licence as required by the local fisheries legislation. The magistrate, in dismissing the charges, held that the Agreement took precedence over the local legislation and that the defendants were fishing in accordance with the Agreed Minute of 28 April 1980. The Acting Chief of Police appealed. He contended that the magistrate had misdirected himself in the construction and the application of the Fisheries Ordinance of 1979 and with respect to the legal effect and interpretation of the Agreement.

Held:—The appeal was dismissed.

(1) The prosecution had failed to establish, beyond reasonable doubt, an essential ingredient of the offence, namely that the boats were foreign fishing vessels as defined by the Fisheries Ordinance (p. 696).

(2) The Reciprocal Fisheries Agreement preserved the reciprocal fishing rights which existed between the British Virgin Islands and the United States to fish in each other's exclusive fishing zones. The Agreement, however, did not have the force of law and the provisions of the Agreement did not restrict the right of the British Virgin Islands to regulate by legislation the exercise of such existing rights by United States fishing vessels in the exclusive fishing zone of the British Virgin Islands. Therefore, the existence of the Agreement was not sufficient to hold that the national legislation was invalid. The proceedings were rightly instituted under the Fisheries Ordinance of the British Virgin Islands (p. 699).

The following is the text of the judgment of Robotham CJ, with which the other members of the Court agreed:

The respondent, David Nolly Bryan, was charged on a complaint by the Chief of Police for that he, on 17th May 1984, being a captain on board a foreign fishing boat (registration No 9720T) together with Alphonso Joseph Bryan, in the exclusive fishing zone of the Virgin Islands, took marine productions (sic), to wit 515 lb of fish, without the authority of a licence issued by the Minister, contrary to section 7(1) of the Fisheries Ordinance 1979, as amended by the Fisheries (Amendment) Ordinance 1982.

A charge in similar terms was laid against the other respondent, Alphonso Bryan. On 12th June 1984, the magistrate dismissed the charges, hence this appeal by the Chief of Police. In dismissing the charges the magistrate in his reasons stated as follows:

‘In my final determination, I find firstly that the evidence for the prosecution has not established beyond reasonable doubt that the boats were foreign fishing boats, as no evidence was led as to what series of registration numbers are used by local fishing boats, neither was there any direct oral testimony that the boats were foreign.’

The magistrate took cognisance of the Reciprocal Fisheries Agreement Treaty 1983 made in London between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America, and dated 27th March 1979, with agreed minute of 28th April 1980, and in respect of which instruments of ratification were exchanged on 10th March 1983. He also took cognisance of the fact that this treaty (as it will hereinafter be called) was presented to Parliament by the Secretary of State for Foreign and Commonwealth Affairs by command of Her Majesty in July 1983 (as appears on the face thereof). Further, that this treaty was gazetted in the British Virgin Islands Gazette on 16th May 1984, the date immediately prior to the commission of the offence. He thereupon concluded that this treaty—

‘being a treaty made by the Imperial Parliament took precedence over the local legislation of the British Virgin Islands, namely the...