Catch app legal challenge

Legal ‘warning shot’ on Catch App prosecutions

Cases will be challenged in court, say industry groups

Two fishing industry groups have fired a legal broadside at DEFRA and the MMO over the controversial under-10m Catch App, reports Tim Oliver.

Plymouth Trawler Agents (PTA) and Felixstowe and Harwich Fishermen’s Association (FHFA) instructed Hull-based marine solicitor Andrew Oliver to write to DEFRA secretary of state George Eustice and the MMO warning that they will contest in court any prosecutions of fishermen that rely on evidence from the controversial under-10m Catch App.

Under-10 fishermen have complained that the Catch App is not fit for purpose since it was introduced last year. Now the two organisations and Andrew Oliver have translated the complaints into action.

The letter to DEFRA and the MMO, which was also copied to the Government Digital Service, which supervised the delivery of the app, says that the solicitors and their clients have ‘considerable concerns regarding the app, its operation, its testing, its approval for use and its evidential value in terms of any legal proceedings, and ultimately any conviction based on any alleged breach of its use’.

It says that they are concerned that a prosecution or any other regulatory action based on evidence from the app ‘could potentially be unfair and illegal’ and that ‘any enforcement action would be based on a flawed system’.

The complainants say that they understand that the testing and procurement processes of the app have not been completed, and ask for ‘written confirmation that should it be the case that MMO officers believe that an infringement has occurred, no steps will be taken towards enforcement’.

They say that taking into account the state of the app’s development, any enforcement action would not pass the legal tests needed for evidence to be presented in court.

In the event of a prosecution, they would therefore seek ‘full disclosure… of all matters relating to the procurement and testing of the app including its approval process’.

They say it would not be in the public interest to bring proceedings based on the app, ‘which has been shown to be flawed, inaccurate, and incapable of being complied with, or incapable of producing accurate evidence’.

They conclude by urging the MMO ‘to make it clear to the fishing industry that no regulatory enforcement action will be taken based on the operation of the app’.

Andrew Oliver told Fishing News that the law on using evidence from an electronic device in court was changed recently. Formerly, a prosecutor such as the MMO only had to bring evidence to the court to show that the device was working properly and accurate.

But now it is down to the courts to decide on evidence presented to them as to whether an electronic source is working properly and can be relied upon.

“The letter is a warning shot across the bows of the MMO, because we know the Catch App has been a nightmare for the MMO to commission, test and implement,” said Andrew Oliver.

He said that they are telling the MMO that if it decides to prosecute on the basis of the Catch App, they will require it to produce full documented disclosure in court as to how the app was put together and tested.

“All its glitches, all its pitfalls will come out in the wash. We hope this will be enough to, one, prevent them bringing any proceedings, or two, scrap it altogether – although, of course, this is a £2.4m investment.

“We know the app is flawed, and we are saying that if you decide to prosecute, we are going to move heaven and earth to make you disclose all of your evidence to show that it does work.”

FHFA spokesman James White said that the action was a last resort, as the last thing they wanted to do was spend money on a legal action, but the authorities seemed ‘hellbent’ on persisting with the app.

“We’re at the end of the road, there’s nowhere else to go,” he said. “Our members feel the app is unjust, immoral and is going to put people in a position where they could be prosecuted for human error.”

NUTFA: ‘Admit you got it wrong’

Under-10m spokesman Jerry Percy said that NUTFA congratulated PTA and the FHFA for committing the resources and having the courage to take a stand against the ill-thought-out Catch App.

“NUTFA has long campaigned for a complete rethink on the system, which puts yet more regulatory burdens on already over-pressed inshore fishermen, and which sought only to needlessly gold-plate existing reporting requirements,” he said.

“What has become clear over the months of our campaign is that the MMO, having spent £1.8m on developing the system and having promoted it widely – with legal backing – remains clearly reluctant to admit that it is anything other than fit for purpose.

“We understand this – it is human nature – but someone in the hierarchy of the MMO, which created this debacle, should have the balls to stand up and admit that they got it wrong.”

He noted that the Catch App happened before new MMO chief executive Tom McCormack took over, and that he had had ‘the decency to apologise on behalf of those who made such scurrilous comments about fishermen in a recent paper on the system’.

MMO: ‘App there to help support under-10s’

An MMO spokesman said that the under-10m Catch App had been introduced to better understand and support the under-10 sector, which includes over 2,000 boats. The information recorded would help to improve the sustainable management of stocks, he said, which is in everyone’s interest.

“After a period of live-testing, the Catch App was gradually introduced throughout the fleet at the end of 2019, and so far, more than 1,700 boats have registered to use the app, with over 15,000 catches recorded to date,” said the spokesman. “Catch records continue to increase every day.

“While it would not be appropriate for the MMO to comment on any individual concerns and/or challenges received, we continue to work with our fishing sector, listen and learn from feedback, and continue to make further improvements to the systems.”