UK Offence Report

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

article 4(1) of The Prevention and Monitoring of Cetacean Bycatch (Scotland) Order 2005 (revoked)

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 Subject to paragraph (2), where there is, in respect of–

a any Scottish fishing boat wherever it may be; or

b any other fishing boat within the Scottish zone,

a contravention of, or failure to comply with,

a Community control measure the persons specified in the appropriate entry in Column

4 of the Schedule shall each 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 This is the text as originally made; later amendments are not shown here.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
contravening a requirement of the instrument
Fault element
Strict liability
Burden of proof
No statutory defence — prosecution proves everything

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.

The provision states no defence, so the prosecution bears the burden on every element of the offence.

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

What would breach article 4(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 Prevention and Monitoring of Cetacean Bycatch (Scotland) Order 2005, 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
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.

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

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

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