A fine issued for illegal hand-diving for scallops in protected waters off Arran has been criticised as “paltry” and “a mockery”, falling “far short of reflecting the gravity of the offence”.

“This incident,” said the Community of Arran Seabed Trust (COAST) in a press statement, “underscores the broader issue of inadequate enforcement within Scotland’s so-called "Marine Protected Areas" (MPAs), raising questions about the effectiveness of current measures to safeguard critical marine environments.”

Critics have also called for a review by the Scottish Government of how penalties are calculated.

40-year-old Scallop diver Lee MacPherson was issued a £4,175 penalty after he pleaded guilty to one charge relating to the fishing at Kilmarnock Sheriff Court on Thursday, October 10.

The prosecution followed an investigation into reports of suspicious fishing activity within the Lamlash Bay No Take Zone in November 2023. Scallop diver, Lee MacPherson, was handed a Fixed Penalty Notice of £10,000 by Marine Directorate Compliance earlier this year.

His sentence was a fine of £4000 (reduced from £6000 as it was discounted in terms of Section 196 of the Criminal Procedure (Scotland) act 1995) and a victim surcharge of £175. It is understood the scallops were recovered by the Scottish Government and so Mr Macpherson did not gain from his activities.  

This fine was described by campaigners as paltry “compared to the estimated retail value of £15,400 of scallops illegally fished and sold to market".

The area of Lamlash Bay in which he fished was designated as Scotland’s first (and still only) No Take Zone (NTZ) in 2008, in which all fishing activity is strictly prohibited. It is part of the larger South Arran Marine Protected Area (MPA), designated in 2014 following a campaign by local marine conservation charity, the Community of Arran Seabed Trust (COAST), and the Arran community.

Low-impact fishing, including hand-diving, is permitted within the South Arran MPA, whereas more damaging bottom-fishing methods have been largely prohibited since 2016, though no fishing is allowed in the No Take Zone.

Aine Purcell-Milton, COAST’s Executive Director, said: “The protected water around Arran has become a renowned site for scientific research, providing invaluable data on how marine ecosystems recover in the absence or reduction of fishing pressure.

“The area serves as a model for community-led marine management across Scotland and beyond, offering insights into how similar protections might be implemented on a larger scale to restore Scotland’s seas.

“Illegal fishing incidents undermine this approach by not only breaking the law, but by disrupting critical time-series data collected from over a decade worth of studies.”

An information sign for Lamlash Bay No Take ZoneAn information sign for Lamlash Bay No Take Zone (Image: The Herald / Gordon Terris)

Alex Watson Crook from the Sustainable Inshore Fisheries Trust said: “Commercial fishing is prohibited in only 66 km2 of Scotland’s 90,400 km2 inshore waters. Lamlash Bay is the jewel in the crown of this tiny area. And if it can’t be adequately protected, then what hope is there for the rest of the seas?”

“This instance undermines the Fixed Penalty Notice system by imposing an almost meaninglessly small penalty for a serious marine offence. This is not the first time this has happened. The Scottish Government needs to urgently review how penalties are calculated.”

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A spokesperson for the Judicial Office for Scotland said: “When deciding upon the sentence, a sheriff will always carefully consider the facts that are presented to the court and will always take into account the unique factors of each case. They will carefully consider the circumstances of the particular offence, what sentence is most appropriate to help reduce reoffending and protect the public, having regard to any relevant sentencing guidelines.”

A Scottish Government spokesperson said: “We take the enforcement of sustainable fisheries management and protection of the marine environment extremely seriously and recognise that alleged illegal activity in MPAs by a small number of operators casts a shadow over the law-abiding majority in the industry. 

“The responsibility for setting fines lies with the courts and the Scottish Government cannot influence these, an independent judiciary is a key part of the Scottish legal system.”

Campaigners also pointed out that the current measures for monitoring and deterring illegal fishing are insufficient. As part of a package of new fisheries measures, the Scottish Government recently consulted on rolling out vessel tracking devices on commercial fishing vessels.

Phil Taylor, Director of Open Seas, pointed out that the Scottish Government “still do not have the systems to ensure compliance in Scottish fisheries.”

He said: “Scottish Ministers spend tens of millions on fisheries compliance each year but focus on the wrong tools - such as £1.7m on two aircraft per year. The solution is to implement robust electronic monitoring systems across the different parts of the fishing fleet - something Scottish Ministers have promised since 2015, and ran a consultation on in 2023, but have yet to progress beyond a limited roll-out on scallop dredgers.

"It’s another case of Scottish Ministers failing to be able to deliver when it comes to ensuring healthy and prosperous seas.”

Scallop diver, David Stinson, of the Scottish Scallop Divers Association, said: “This illegal act makes a mockery out of other scallop divers and fishers who wholeheartedly support conservation measures for the marine environment”.

“Most of us whose livelihoods rely on the sea recognise the importance of protecting it and enforcement needs reform to ensure this is done. Scotland had a three-mile limit for nigh on a century; it is simple to understand and enforce, and my preference is the Scottish Government step up and reintroduce a modern version to protect our Inshore Waters.”