The collection of intertidal ‘sea fish’ (fish, molluscs and crustaceans) is a public right – an integral part of the inalienable right to fish in tidal waters, and is open to everybody. This right is usually extended to allow the public to collect shellfish (molluscs and crustaceans) from the exposed foreshore, provided that they have a right of access to the shore. The public right to fish may be regulated under byelaw, but not extinguished. Exceptions are where these rights have been transferred to the owner of the shore (usually by pre-Magna Carta grant in England) or severed from the public fishery by Several Order (see below).

The public right to collect bait worms is ancillary to the public right to fish and is limited to personal use only (Anderson v. Alnwick District Council). There is no legal right to take worms commercially without the permission of the landowner. An exception may occur where private rights over certain areas of the shore exist, either by grant from a landowner or by local custom following extremely long and continuous use of an area by a clearly identifiable group of people. Such customary rights are rare and very difficult to prove. In practice, it is extremely difficult to differentiate between personal and commercial bait collectors on the ground, making this legal distinction unhelpful.

In Scotland, mussels and oysters were removed from the public fishery by The Mussels Fisheries (Scotland) Act 1847 and The Oyster Fisheries (Scotland) Act 1840. These species now belong to the Crown and rights to fish commercially for them are managed by the Crown Estate Commissioners through issuing licenses. In many areas the Crown has ceded title to these fisheries to local landowners or communities, although no public record of these titles is readily available and even the Crown Estate does not have clear records (McKay and Fowler 1997a). The Acts which removed mussels and oysters from the public fishery pre-date the judgement of Hall v. Whillis which supported the concept of the right to collect naturally occurring shellfish or other bait species (including mussels) by hand, provided that there is access to the shore and the end use is non-commercial. This suggests that the collection of mussels for bait or ‘for the pot’ in Scotland is a tolerance of the Crown.

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