UK Offence Report

Offences related to marketing

regulation 3(1) of The Sea Fish (Marketing Standards) (Scotland) Regulations 2004

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

1 Where there is

a contravention of, or

a failure to comply with, any specified Community provision the master, the owner and the charterer (if any) shall each be guilty of an offence and liable on summary conviction to

a fine not exceeding level

5 on the standard scale.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a master
Conduct
contravening a requirement of the instrument
Fault element
Strict liability
Burden of proof
Legal burden on the defendant

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a master meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

The provision gives a defence the defendant must prove, on the balance of probabilities. A legal burden of that kind can be read down to a merely evidential one under section 3 of the Human Rights Act 1998 where placing it on the defendant would be disproportionate (R v Lambert [2001] UKHL 37; Sheldrake v DPP [2004] UKHL 43).

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

The defence, as drafted

ich the first mentioned person is, on conviction, liable. 6 It shall be a defence for a person charged with an offence under these Regulations to prove that they took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.

What would breach regulation 3(1)?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. Doing the thing the provision prohibits under the Sea Fish (Marketing Standards) (Scotland) Regulations 2004, whatever the reason for doing it.
  2. Where the requirement is a positive duty, letting the time for performing it pass without performing it.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
£5,000
Standard scale
Level 5
Maximum prison (summary)
Not determined

in Scotland a reference to a level is construed as referring to the standard scale as it currently stands (CP(S)A 1995 s.225(2)), not as it stood when the instrument was made.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
16 November 2004
In force from
14 December 2004
Extent
S

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations make provision for the enforcement in Scotland of Community Regulations laying down common marketing standards and related rules as to marketing for certain species of sea fish, including shellfish. The Regulations implement a Community obligation to take appropriate measures to penalise infringements of Community marketing rules for fishery products, imposed by Article 3 of Council Regulation (EC) No. 104/2000 (O.J. No. L 17, 21.1.00, p.22). The Council Regulations to be enforced under these Regulations are– a Council Regulation 2406/96, as amended by Commission Regulation (EC) No. 323/97, Council Regulation (EC) No. 2578/2000, Commission Regulation (EC) No. 2495/2001 and the Act concerning the Conditions of Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded and read with Commission Regulation (EEC) No. 3703/85 as amended by Commission Regulation (EEC) No. 3506/89; and b Council Regulation (EC) No. 104/2000. Those Council Regulations prohibit the marketing for human consumption of fishery products except in compliance with the rules laid down in those Regulations. These rules require that fishery products must be marketed in lots each containing fish of the same species of uniform grade of freshness, size and presentation (determined in accordance with grading standards prescribed in Regulation 2406/96), bearing a label to show the grade and have the net weight in kilograms clearly and legibly marked on each lot (Articles 5, 7 and 8 of Regulation 2406/96). Additional rules are prescribed in relation to fish imported from third countries, while fish landed from third country vessels are subject to the rules applicable to Community catches (Article 11 of Regulation 2406/96). In the case of pelagic species such as herring and mackerel (which may be marketed in bulk) grading may be undertaken according to a sampling system (Article 9 of Regulation 2406/96). These Regulations make infringements of the prohibitions on marketing imposed by Regulations 2406/96 and 104/2000 offences for the purposes of Scots law and specify penalties (regulation 3). The Regulations confer powers of enforcement on authorised officers (regulation 4), penalise the obstruction of such officers in the exercise of those powers (regulation 5) and provide for the protection of such officers, acting properly, from challenge in the courts (regulation 6). The Regulations revoke the Sea Fish (Marketing Standards) Regulations 1986 (as amended) as regards Scotland (regulation 7).

Read the full note and every offence in this instrument

Other offences in the same instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.92.

Basis
the provision says a person is “guilty of an offence”
Confidence
0.92 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source