Use of regulated gear

article 6(2) of The Sea Fishing (Restriction on Days at Sea) (Scotland) Order 2006

Revoked
Strict liability
Either way
Health and safety, environment, waste and fisheries

The provision has been revoked and no saving provision preserving liability for earlier conduct was found.

What the provision says

2 A person in charge of a relevant fishing boat which carries or uses, whilst present in the cod recovery zone, regulated gear other than the regulated gear notified under a requirement in paragraphs 16 to 18 of Annex IIa is 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 This is the text as originally made; later amendments are not shown here.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: breaching the provision
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 6(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.

Doing what the provision prohibits, or failing to do what it requires under the Sea Fishing (Restriction on Days at Sea) (Scotland) Order 2006.

Penalty

Mode of trial: Either way — magistrates’ court or Crown Court
Maximum fine: £50,000
Maximum prison (summary): Not determined

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.
Imposition of community and custodial sentences: definitive guideline All courts in England and Wales
When a community order or custody is justified at all, and the presumption against short custodial sentences.
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: Revoked
Revoked by: The Sea Fishing (Restriction on Days at Sea) (Scotland) Order 2007
Revoked on: 7 February 2007
Made: 8 June 2006
In force from: 30 June 2006
Extent: Not stated

How this was established: the instrument was revoked by a later instrument found in this corpus.

What the instrument is for

This Order provides for the enforcement in Scotland of the provisions of Annex IIa and IIc (“the Annexes”) to Council Regulation 51/2006 (O.J. No. L 16, 20.1.06, p.1) fixing for certain fish stocks and groups of fish stocks the fishing opportunities in Community waters for 2006 and the monitoring, inspection and surveillance provisions in Council Regulation 423/2004. The Order contains provisions relating to the determination for certain fishing boats of the management periods referred to in paragraphs 9.1 and 8.1 of the Annexes (articles 3 and 14); and the calculation of the number of days on which a vessel may be absent from port for the purposes of the Annexes (articles 4 and 15). It contains provisions relating to the deduction of days by the Scottish Ministers (articles 4(10) and 15(10)) and the procedure to be followed in doing so (articles 5 and 16). Provision is made as to the use of regulated gears and associated offences (articles 6 and 17), and the transfer of days from one boat to another (articles 7 and 18). The Order creates offences in respect of contraventions by certain persons of other provisions of Regulation 423/2004 and Annex IIc concerning mixing of species, transportation of cod and sole, the landing of cod and sole where prior notification is required, the landing of cod at a designated port, the recording of information on catches of fish and the weighing of sole (articles 8 to 12 and 19 to 23). By virtue of article 11(4), the ports named in the Schedule to the Order are designated for the purposes of Article 12 of Regulation 423/2004. Provision is made for the maintenance of a logbook (article 24), and for the submission of the relevant part of the logbook at a designated port (article 25). The Order extends the application of the Sea Fishing (Enforcement of Community Control Measures) (Scotland) Order 2000 (S.S.I. 2000/7) in pursuance of Regulation 423/2004 (O.J. No. L 70, 9.3.04, p.8) and Annex IIc (article 26). The Order provides for penalties (article 27) and for the recovery of fines imposed in respect of a relevant offence as defined in the Order (article 28). For the purposes of enforcing provisions of the Annexes and Council Regulation 423/2004 the Order confers on British sea-fishery officers the powers to enter premises, to go on board fishing boats, to stop and search vehicles transporting fish, to examine fish, to require the production of documents, to search for and seize documents, to take a boat to the nearest convenient port and to seize fish and fishing gear (articles 29 to 31). Provision is made for the protection of British sea-fishery officers in the exercise of their powers under the Order (article 32) and for an offence of obstructing such officers (article 33). Provision is made in relation to offences committed by a body corporate, a partnership or an unincorporated association (article 34) and in relation to the admissibility in evidence of logbooks and other documents (article 35). The Order revokes the Sea Fishing (Restriction on Days at Sea) (Scotland) Order 2005 (S.I. 2005/90) (article 36). A Regulatory Impact Assessment in the relation to this Order has been prepared and placed in SPICE. Copies can be obtained from the Scottish Executive Environment and Rural Affairs Department, Robb’s Loan, Edinburgh, EH14 1TY.

Read the full note and every offence in this instrument

Other offences in the same instrument

Landing of cod where prior notification is requiredarticle 10(2)
Landing of cod where prior notification is requiredarticle 10(3)
Landing of cod at a designated portarticle 11(1)
Landing of cod at a designated portarticle 11(3)
Recording information on catches of fisharticle 12
A person in charge of a relevant fishing boat or a foreign fishing boat in respect of which paragraph 17 or…article 13(1)
Absence from portarticle 15(1)
Use of regulated geararticle 17(1)
Use of regulated geararticle 17(2)
Mixing of speciesarticle 19
Transportation of solearticle 20
Landing of sole where prior notification is requiredarticle 21(2)

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 Sea Fishing (Restriction on Days at Sea) (Scotland) Order 2006 Every offence this instrument creates, and its explanatory note
Health and safety, environment, waste and fisheriesOther offences on the same subject
Offences created in 2006