UK Offence Report

Amendment of the Sea Fishing (Prohibition on the Removal of Shark Fins) (Scotland) Order 2007

article 2(4) of The Sea Fishing (Prohibition on the Removal of Shark Fins) (Scotland) Amendment Order 2009

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

4 In Schedule 1 (specified community provisions, contravention of which constitutes an offence)— a in Part1 omit the entries in columns1 and 2 for items2, 3, 4 and 5; and b after Part2 insert— Part3 Column 1 Column 2 Provision of Regulation Subject Matter 1.Article 4.3 Prohibition on the discarding at sea of the remaining parts of sharks (except those parts resulting from basic operations) where the shark finning has taken place in accordance with a special fishing permit as specified in Article4.1. 2.Article 4.4, as read with Article 4.5 Prohibition on the retention on board of fins, the weight of which exceeds 5% of the live weight of the shark catch. 3.Article 5.1 Requirement on masters holding special fishing permits to keep records of the weight of shark fins and the remaining parts of sharks retained on board, transhipped or landed; requirement to keep logbook records with valid landing, transhipment and sales documentation where the shark catch is not landed as a whole.

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 This is the text as originally made; later amendments are not shown here.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; other provisions of the same instrument use a mens rea word while this one does not (the Cundy v Le Cocq contrast).

What would breach article 2(4)?

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 (Prohibition on the Removal of Shark Fins) (Scotland) Amendment Order 2009, 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 here: this instrument amends another one, and the penalty for the offence is in the instrument being amended.

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
24 November 2009
In force from
1 January 2010
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 amends the Sea Fishing (Prohibition on the Removal of Shark Fins) (Scotland) Order 2007 (“the principal Order”). The principal Order makes provision for the enforcement of restrictions and obligations contained in Council Regulation (EC) No.1185/2003 on the removal of fins of sharks on board vessels (O.J. No.L167, 4.7.03, p.1) (“the Regulation”). The Order amends article 2 (interpretation) of the principal Order by adding definitions of “Community fishing boat” and “relevant British fishing boat”. It also amends the definition of “relevant fishing boat”, which varies the application of the offence provisions under article3 of the principal Order (article2(2)). The Order amends article3 (offences) of the principal Order by— a removing the defence of acting in compliance with a special fishing permit, issued in accordance with Article4 of the Regulation (article2(3)(a)); b amending the offence provisions so that they apply to redefined categories of fishing boats. It modifies article3(1) of the principal Order by excluding from its application, any non-Scottish fishing boat within the Scottish zone which holds, and operates in compliance with, a special fishing permit issued in accordance with Article4 of the Regulation. It substitutes article3(3) of the principal Order to make it an offence for any non-Scottish fishing boat, which is within the Scottish zone and holds a special fishing permit, to contravene the specified provisions of the Regulation that relate to special fishing permits (article2(2)(c) and (3)(a)); and c substituting article3(4) of the principal Order to restrict the offence of providing false information, in purported compliance with Article5 of the Regulation, to information which is provided in Scotland or in the Scottish zone and to remove reference to information provided in relation to a Scottish fishing boat (article2(3)(b)). The Order amends Schedule 1 to the principal Order by— a removing from Part1, the offences relating to breaches of conditions associated with special fishing permits (article2(4)(a)); and b inserting a Part3 to make it an offence for any non-Scottish fishing boat, which is within the Scottish zone and holds a special fishing permit, to contravene any of the specified provisions of the Regulation that relate to special fishing permits (article2(2)(c) and (4)(b)). No Regulatory Impact Assessment has been prepared for this instrument as it has no impact on the cost of business.

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 0.88.

Basis
the provision says the conduct “is an offence”; the provision says the conduct “constitutes an offence”
Confidence
0.88 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