UK Offence Report

Absence from port

article 8(1) of The Sea Fishing (Enforcement of Community Quota and Third Country Fishing Measures and Restriction on Days at Sea) (Scotland) Order 2009

The provision has been revoked and no saving provision preserving liability for earlier conduct was found.

What the provision says

8 1 A person in charge of a relevant fishing boat which— a is absent from port and within the cod recovery zone in excess of the number of days or hours allocated to it by a special fishing permit; or b enters the cod recovery zone carrying on board any specified regulated gear without having a special fishing permit, 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 This is the text as originally made; later amendments are not shown here.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
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 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 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

4 In any proceedings for an offence under paragraph(1)(a), it is a defence for a person to show that the number of days or hours of absence from port carrying any type of fishing gear comprising the offence was no greater than the number of days or hours of absence carrying that gear purportedly, but not validly, transferred to the fishing boat used by

What would breach article 8(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 what the provision prohibits, or failing to do what it requires under the Sea Fishing (Enforcement of Community Quota and Third Country Fishing Measures and Restriction on Days at Sea) (Scotland) Order 2009.

Penalty

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

'to a fine' with no stated maximum.

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
Revoked
Revoked by
The Sea Fishing (Transitional EU Technical Conservation Measures) (Scotland) Order 2010
Revoked on
17 April 2010
Made
17 September 2009
In force from
10 October 2009
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 note is not part of the Order) — the explanatory note published with the instrument, © Crown copyright.

This Order, which forms part of the law of Scotland only, makes provision for the enforcement of Council Regulation (EC) No.43/2009 (“the Council Regulation”). PartI makes provision for interpretation of the Order. PartII makes provision for the enforcement of certain enforceable Community restrictions and other obligations relating to sea fishing by Community vessels and third country vessels set out in the Council Regulation. The Council Regulation fixes total allowable catches and the quotas of Member States for 2009 in respect of certain fish stocks and lays down certain conditions under which they may be fished. It also authorises fishing by third country vessels of Norway and the Faroe Islands for specified fish stocks in Community waters in 2009, subject to requirements regarding fishing quotas and authorised zones, methods of fishing, fishing authorisations and associated conditions, the keeping of logbooks, the transmission of information and similar matters. PartII of the Order— a makes provision for the purposes of Article10 of the Council Regulation (requirement for adequate sampling programme when landing unsorted catches) (article3); b makes it an offence to contravene the provision in AnnexIA to the Council Regulation in relation to the quantity of skates and rays retained on board (article4); c makes it an offence to contravene paragraphs9.11 and24(e) of AnnexIII to the Council Regulation which limit the by-catch of sharks and redfish to a maximum of 5% and 1% respectively of the total catch retained on board (article 5); d makes it an offence to contravene the provisions in AnnexIA to the Council Regulation which impose a maximum landing size for spurdog/dogfish and porbeagle (article 6); and e creates offences in respect of contraventions of the provisions of the Council Regulation referred to in column1 (and briefly described in column2) of Schedules1 (Community quota measures) and 2 (Community third country fishing measures) to the Order (article7). PartIII of the Order provides for the enforcement in Scotland of the provisions of AnnexIIa to the Council Regulation. It creates offences associated with the number of days that certain fishing boats can spend and the use of gear permitted within, the cod recovery zone in accordance with AnnexIIa of the Council Regulation (articles 8 and 9). Part IV of the Order provides for the maintenance and submission of logbooks at ports designated in the Order (articles 10 and 11 and Schedule 3). Part V of the Order provides for penalties (article 12) and for the recovery of fines imposed in respect of an offence under the Order (article 13). For the purposes of enforcing the provisions of the Order or any equivalent provision (as defined in the Order) Part IV of 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 14 to 16). Provision is made for the protection of British sea-fishery officers in the exercise of their powers under the Order (article 17) and for an offence of obstructing such officers (article 18). Provision is made in relation to offences committed by a body corporate, a partnership or an unincorporated association (article19) and in relation to the admissibility in evidence of logbooks and other documents (article 20). The Order revokes articles2 to 33 of the Sea Fishing (Enforcement of Community Quota and Third Country Fishing Measures and Restriction on Days at Sea) (Scotland) Order 2008 (article21). A Regulatory Impact Assessment in the relation to this Order has been prepared and placed in SPICE. Copies can be obtained from Marine Scotland, 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