UK Offence Report

Use of regulated gear

article 6(5) of The Sea Fishing (Restriction on Days at Sea) (Scotland) Order 2007

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

5 A person in charge of

a relevant fishing boat or

a foreign fishing boat which contravenes the prohibition in paragraph (4) 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 This is the text as originally made; later amendments are not shown here.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
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 6(5)?

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 Fishing (Restriction on Days at Sea) (Scotland) Order 2007, 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
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.

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
1 February 2007
In force from
7 February 2007
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 provides for the enforcement in Scotland of the provisions of Annex IIa and IIc (“the Annexes”) to Council Regulation 41/2006 fixing for certain fish stocks and groups of fish stocks the fishing opportunities in Community waters for 2007 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 in pursuance of Regulation 423/2004 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 2006 (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

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