Admittance of observers on board vessels

Q: Is article 3(2) of The Prevention and Monitoring of Cetacean Bycatch (Scotland) Order 2005 (revoked) a strict liability offence?

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 person meant to do it, knew about it, or was careless.

article 3(2) of The Prevention and Monitoring of Cetacean Bycatch (Scotland) Order 2005 (revoked)

Status not determined
Strict liability
Health and safety, environment, waste and fisheries

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

2 Any person who–
a fails without reasonable excuse to allow an observer to board
a Scottish fishing boat (wherever it may be), or any other fishing boat in the Scottish zone; or
b obstructs any observer from carrying out any functions of an observer for the purposes of monitoring schemes for incidental catches of cetaceans under Article
4 of the Council Regulation, shall be guilty of an offence.

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 This is the text as originally made; later amendments are not shown here.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 person
Conduct: obstructing an official exercising a power
Fault element: Strict liability
Burden of proof: An element of the offence, for the prosecution to prove

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 person 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.

“Without reasonable excuse” here is an element of the offence rather than a defence, so its absence is for the prosecution to prove (R v Charles [2009] EWCA Crim 1570).

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision; qualified by reasonable excuse (an element; prosecution disproves once raised).

The defence, as drafted

2 Any person who– a fails without reasonable excuse to allow an observer to board a Scottish fishing boat (wherever it may be), or any other fishing boat in the Scottish zone; or b obstructs any observer from carrying out any functions of an observer for the purposes of monitoring schemes for incidental catche

What would breach article 3(2)?

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.

Refusing to let an inspector onto premises they are entitled to enter under the Prevention and Monitoring of Cetacean Bycatch (Scotland) Order 2005.
Sending an official away, or telling staff to say nothing, where the power being exercised does not depend on anyone's consent.
Physically blocking an examination, or removing something an officer has said they intend to inspect.

Penalty

Mode of trial: Not determined
Maximum fine: Not determined
Maximum prison (summary): Not determined

no penalty is stated in this instrument; it may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence.

No penalty was determined from this instrument. It may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence. Absence of a figure here is not evidence that the offence carries no penalty.

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.

Sentencing organisations: fines and the means of a corporate defendant All courts in England and Wales
How a fine on a company is arrived at from its turnover. Relevant far beyond the guidelines that state it, because a very large share of the offences in this corpus can only be committed by an organisation.
Environmental offences: definitive guideline Magistrates' courts and the Crown Court in England and Wales · in force from 1 July 2014
Covers unauthorised or harmful deposit, treatment or disposal of waste, illegal discharges to air, land and water, and the equivalent offences committed by organisations. It is the guideline that introduced turnover bands for corporate fines, so the size of the defendant company is a starting point rather than a mitigating detail.
Health and safety offences, corporate manslaughter and food safety and hygiene offences: definitive guideline Magistrates' courts and the Crown Court in England and Wales · in force from 1 February 2016
Covers breaches of duty under the Health and Safety at Work etc. Act 1974 and the regulations made under it, and food safety and food hygiene offences. Sentencing turns on culpability and on the seriousness and likelihood of harm risked, not only on the harm that happened.
Reduction in sentence for a guilty plea: definitive guideline All courts in England and Wales · in force from 1 June 2017
The sliding scale of credit for pleading guilty, from one third at the first stage of proceedings downwards.
General guideline: overarching principles All courts in England and Wales · in force from 1 October 2019
The guideline a court uses when there is no offence-specific guideline, which is the position for the overwhelming majority of offences created by statutory instrument. It sets out how culpability and harm are assessed from first principles.
Totality: definitive guideline All courts in England and Wales
How to sentence more than one offence at once so that the total is just and proportionate - frequently in point here, because regulatory prosecutions commonly charge several breaches of the same instrument.

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: 8 June 2005
In force from: 1 July 2005
Extent: Not stated

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 Order makes provision for the enforcement of certain enforceable Community restrictions and other obligations relating to sea fishing by vessels in certain areas as set out in Council Regulation (EC) No. 812/204 (O.J. No. L 150, 30.04.04, p.12, as amended by Corrigendum O.J. No. L 185 24.05.04, p.4). The Council Regulation provides for Member States to monitor the bycatch of cetaceans by the implementation of an observer scheme. It also requires certain vessels to deploy acoustic devices in relation to certain gear whilst fishing. Article 3 of the Order creates offences in respect of the failure to allow an observer on board a fishing vessel or the obstruction of an observer from carrying out the functions of an observer. Article 4 of the Order creates offences in respect of breaches of the provisions of the Council Regulation (Community control measure) specified in column 1 (and briefly described in column 2) of the Schedule to the Order. Penalties are specified for such offences and for offences under article 3 (article 5). The statutory maximum penalty specified is currently £5,000. Provision is made for the recovery of fines (article 6). The Order confers powers of enforcement on British sea-fishery officers in relation to certain fishing boats as well as on land in Scotland and in relation to the seizure of fish and fishing gear (articles 7, 8 and 9). Provision is made for the punishment of anyone found guilty of obstructing an officer (article 11). The Order also makes provision in relation to offences committed by bodies corporate and partnerships and the admissibility of certain documents (articles 12 and 13).

Read the full note and every offence in this instrument

Other offences in the same instrument

Obstruction of officersarticle 11
Subject to paragraph (2), where there is, in respect of– a any Scottish fishing boat wherever it may be; or…article 4(1)

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

This provision on legislation.gov.uk The authoritative text. Check it before relying on anything here.
The Prevention and Monitoring of Cetacean Bycatch (Scotland) Order 2005 (revoked) Every offence this instrument creates, and its explanatory note
Health and safety, environment, waste and fisheriesOther offences on the same subject
Offences created in 2005