To go to a river or loch known to hold fish and to be an established fishery, at any time of year, to practice fly casting as long as you have no hook, or any other means of trapping fish, attached to your leader?
I remember reading of a case where a guy was done for fishing when in fact he was only practising his casting on a park pond. I can't remember the details unfortunately. It may well have been in Aberdeen.
QuoteIf doing this though, I'd make sure that the person/club you would normally get a permit from were informed of your intentions and that you had no hook anywhere in your possession.
I think that is a good idea. When I tried fishing the Clyde for barbel a couple of years ago, I made sure the bailiff knew me and the gear I would be using, by having a wee word first.
Alex
Quote from: Ardbeg on December 23, 2009, 11:41:11 AM
Can't see why not, you're not actually fishing.
For sure you are not, but might you be accused of something else, for example disturbing spawning fish?
Quote from: Ardbeg on December 23, 2009, 02:02:48 PM
Fish a bit that isn't gravelly.
This is a real can of worms - please excuse any unintentional pun - how would a casting practicer know for sure they were not causing disturbance? It might be argued of course that grayling fishers, or even canoe or raft users would be causing equal or greater disturbance, but they are allowed (as long as it's not a business venture).
Somehow I doubt we would be welcomed if doing a bit of honest, not for profit, casting practice on say - the Dee or the Helmsdale.
Might it not be argued by some smart prosecutor that if you know there are salmon in the river where you are practising you are knowingly causing disturbance?
This opens a wider question: if it's not illegal, then what's to prevent you practising during the season at - let's say - the junction pool on the Tweed? Assuming you do not obstruct others, by getting out of the way at the appropriate time could they have legal cause for complaint?
Even with no intent, if they did manage to prove you had caused some damage, you may be liable for payment of damages through delict law. Although you'd really have to have pissed someone off for them to chase you through law for practising casting.
I've practiced spey casting with a bit of wool early on in the salmon season on the clyde beside baillifs and no-one had a problem with it. I obviously didn't have a permit but since i wasn't fishing there was no problem.
Quote from: Ardbeg on December 23, 2009, 05:31:33 PM
deliberately courting confrontation which could be seen as breach of the peace I would reckon.
Deliberately, knowingly.
The same might be said about canoeing on a river you know anglers fish. The Tay would be a good example.
As long as the canoeists do not knowingly impede the fishers there seems to be no problem.. Why would casting practicers who gave way to fishers be any different?
Swimming also seems to be OK.
It would be interesting to get the view of a lawyer on this one because none of us laymen really know the ins and outs.
As it stands I would happily canoe or swim on any river if the fancy took me, I?m not so sure I?d be as confident about casting practice unless I had a permit and it was in season.
Quote from: Alan on December 23, 2009, 06:04:30 PM
requesting permission from a land owner might raise a few eyebrows, you may be seen as getting in the way of those that pay or those that use the land by right
Indeed. It would be interesting to go to the Clyde, Earn etc for a bit of permit-less casting practice this weekend and see how long you lasted. :D
I knew I had seen something on this before - here it is
http://www.salmonfishingforum.com/forums/showthread.php?t=5363
I have taken people down to the local river to teach them to cast and have also tried out new gear out of season. My view has always been that you aren't fishing so it is of no concern to any bailiff. As far disturbing spawning salmon or seatrout is concerned I seriously doubt that would hold any water except possibly during the very short spawning period. Salmon fishing in late October and November would disturb spawning fish!
That's an interesting link Malcolm although there is no answer there either.
Quote from: Alan on December 23, 2009, 06:28:32 PM
we have a criminal lawyer at the casting club......
Could you ask him for his opinion? Things in law are seldom straightforward, but getting an opinion would be interesting.
Quote from: Alan on December 23, 2009, 06:28:32 PM
we have a criminal lawyer at the casting club......
all lawyers are criminal, look at their fees.
The first thing he will charge you for is that this is largely a civil matter.
Quote from: Inchlaggan on December 23, 2009, 06:35:12 PM
The first thing he will charge you for is that this is largely a civil matter.
Even if the river you are practicing on is covered by a PO?
But that is not relevant if what you are doing is not fishing. Swimming is not fishing, dog walking is not fishing and neither is canoeing, so as long as you are doing them for recreational purposes (as opposed to commercial it seems), and doing them responsibly, then you don?t even have to ask permission from the landowner.
If the legal extract that Smurf posted above holds then casting practice is not fishing either, so can we go down to any river or loch at any time, with our rod, line and bit of wool, and not fish responsibly and with due consideration to other users?
While fishing out of season for trout or salmon is a crime punishable with quite stiff punishment, "not fishing" surely cannot be!
If a bailiff asks me to stop fishing during the close season presumably it is because he thinks I am "fishing" and as it is out of season then it is a criminal offence.
However to argue that it is possible to angle without a hook is plain ludicrous. So if you are being jumped on it must be for some other law.
If I am stopped by a bailiff or by our local policeman when I am teaching someone to cast I will most certainly stand my ground.
I'd be blooming certain that there was nothing about my person, or in my car, that could be contrived as a means of catching a fish.
As an (non-fishing) example- A deer stalker went out for a day's hunt, returned home and his son took the car out to the pub (properly insured etc.). The son did not drink alcohol, nor get involved in any aggression. On his way home he was stopped by the police, on the basis of doubting his ownership of the vehicle (it had a personalised registration). The vehicle was searched and two lock knives were found in the locked glove compartment. The son was brought to court for posession of offensive weapons.
I "sent" the last post before I had finished.
One of the things that would concern me is that it could cause quite a few call outs to the local police or bailiff force if someone is reported fishing - particularly out of season. Given that the Police are often slow enough to respond it would be worse if there was the chance of a false alarm. :worms
Quote from: Malcolm on December 23, 2009, 07:02:40 PM
If I am stopped by a bailiff or by our local policeman when I am teaching someone to cast I will most certainly stand my ground.
I am not suggesting you are, but if such teaching is done commercially then I don't think the free and responsible access legislation holds and permission has to be sought from the owner. The Glengarry canoeing court ruling some months back suggests that is the case anyway.
Fachan,
Trout fishing outside of the season is a criminal offence and carries the same penalties as salmon poaching.
Ardbeg
The important point is that without a hook there can be no fishing. My knowledge of English Law is better than my knowledge of Scots Law but Lord Denning laid out a principle of statute law while he was Master of the Rolls. As this principle was said in the was the Court of Appeal. I am sure it will have more than just "persuasive authority".
He called it the Golden Rule.
He said that where there was doubt as to the meaning of words of statute law it was the duty of the judge to examine the intention of the drafters of the law. It seems to me that the word of the law in the statute does not exist in limbo but rather exists in the context of "fishing" as we know it and clearly there can be no fishing with a bit of wool without a hook in it. It would be interesting to test it!
Quote from: guest on December 24, 2009, 01:06:26 AM
- how plausible would be the 'It's alright - it's not loaded defence?'
Indeed, but as has been hinted at above, we have to separate what a keeper thinks is wrong and what the law says is wrong. That's far from clear, to me anyway. To be honest I'd like to think I'd be able to practice honestly, but do wonder about the possibility of abuse this might open up.
The disturbance thing is just a red herring, casting practice would cause no more disturbance than many other legal pursuits - for example grayling fishing - and far less than many others such as canoeing and swimming. Just to be clear I'm all for grayling fishing, swimming, canoeing
and casting practice.
i would dearly love to practice my casting on rivers or still waters out of season but this would just be a nightmare for bailiffs casty club should left to alan in some pond if the poachers saw us practicing every weekend there would be more poachers than us thats for sure dont encourage them at is stands they stand out at least during daylight hours its best to keep the banks clear there must be hundreds during any season pleading ignorance a ticket ! i did'nt know aye right !
Bet you're glad you weren't temped to see if any grayling were around Alan. BTW, don't you mean the Kelvin?
Quote from: River Chatter on February 13, 2010, 06:43:19 PM
Bet you're glad you weren't temped to see if any grayling were around Alan. BTW, don't you mean the Kelvin?
Yep on the kelvin.
Yesterday the chap asked "have you caught anything" the time before I was asked "when does the season start mate" but once you say you're practising no-one gives a sh1t! I personally cannot see anyone ever being charged with such a thing, pretty sure the court system would laugh it off assuming no protection order breaches etc.
Quote from: wildhibroon on February 13, 2010, 10:19:07 PM
I LIKE ladies (so does Alan) in my case that INCLUDES the "lady of the stream" :D
Going on my basic biology knowledge. Don't we need males and females to spawn?
So does that mean you like lady-boys? :lol: :lol:
Quote from: Alan on December 23, 2009, 04:53:31 PM
beat me to it, with no 'intent' and no 'act' it could be argued that no crime was committed,
could kick off the next evolution in conservative angling, following on from catch and release, 'rise and release' is born :lol:
I'm sure I recall a letter (in the early 90s) in one of the fishing mags from a fly tyer who chops the bend and 'pointy end' of the hook off. This allows fish to rise to the fly and then spit it out, thus proving that his tying had fooled the fish and that had he wished to he could have landed it.
:shock: :shock: :shock:
I count a successful day if I feel a fish to the wet fly or see a fish rise to the surface flies. It proves to me that I had the right fly or was fishing the right way to fool the fish. Catching and landing the fish is a bonus but only proves how quick my reactions are not how good a fisherman I am :worms :crap
Quote from: fishtales on February 14, 2010, 02:31:07 PM
I count a successful day if I feel a fish to the wet fly or see a fish rise to the surface flies.
Oh. god - that's a frustrating day :?
I do like to land a fish - and I don't always succeed. It's the whole thing - including the eating of a reasonable proportion that I like.
But it does beg the question (going back on topic - albeit briefly), would the use of a fly with no hook on it be strictly legal? I'd expect not, as you are deliberately attempting to affect the fish, and there is a risk that if swallowed completely, the line could foul on the gills.
Apropo this, would it be possible to tie a fly sufficiently woolly to entangle trouts teeth, like can be done with eels and balls of string+worms?
While teaching a mate of mine, who was just taking up fly fishing, how to cast, I caught half a dozen small trout from the surface on a piece of red wool tied to the end of the cast. Landed and released all of them and rose at least the same again :) By the third one I had an audience of dog walkers, joggers and anglers who couldn't believe I didn't have a fly on. Admittedly they were all 4-6 inch fish which the cooncil had put in the previous week :)
Re Malcolm's post on 23 December last, I am the same Teither who raised the issue on the Salmon Fishing Forum. Before and since then I've had the devil's own job trying to get anything definitive on this subject, and especially in the context of the Outdoor Access Code, from the Scottish Executive. I spoke with two [ quite obtuse, in my view ] individuals in the Scottish Executive. Their last word on the subject was to the effects that " the Courts would have to decide ... ".
The matter is of some interest to me and I continue to pursue the issue, next with Roseanna Cunninghame. I shall post word of any outcome, should there be one. Please do not hold your collective breath.
Incidentally, I did discuss this briefly with our lawyer friend at the Casting Club. I know his opinion but I think it would not be appropriate for me to pass on his opinion here. However, I shall continue to practise on the Teith on Sundays if I feel like it, quite comfortable that I should do so with impunity !! I should say that the former bailiff there gave me appropriate permission some time ago, and assured me that the provisions of the OAC afforded the right to practise casting on the river at any time, subject only to the caveat that individuals so doing are behaving in a responsible manner. I would suggest that practising casting at a place and time where others are actually fishing would not be " behaving responsibly ".