UK Offence Report

Contravention of The Regulation of Scallop Fishing (Scotland) Order 2017

the instrument as a whole of The Regulation of Scallop Fishing (Scotland) Order 2017

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

Contravening this instrument is an offence under sections 1(7)-(8) and

11 of the Sea Fish (Conservation) Act 1967. The instrument itself contains no offence-creating words.

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 This is the text as originally made; later amendments are not shown here.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
Not determined

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.

Classifier’s reasoning: contravention offences of this kind are strict as to the breach; the fault position is governed by the parent Act and was not read from it.

What would breach the instrument as a whole?

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 Regulation of Scallop Fishing (Scotland) Order 2017.

Penalty

Mode of trial
Set by another provision — the instrument states the penalty by reference to an Act or to another regulation
Maximum fine
Not determined
Maximum prison (summary)
Not determined

The instrument does not state a penalty itself. It sets one by reference to sections 1(7)-(8) and 11 of the Sea Fish (Conservation) Act 1967.

the penalty is in the parent Act, not in this instrument.

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
25 April 2017
In force from
1 June 2017
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, which applies in relation to the Scottish zone and to landings in Scotland, introduces measures for the conservation of king scallops. Article 3 prescribes a minimum size (of 105 millimetres) for the landing of king scallops in any part of Scotland, apart from two specified areas: an area of coastline in the south west of mainland Scotland and the Shetland Islands. By virtue of Annex XII of Council Regulation (EC) No 850/98 (OJ L 125, 27.4.1998, p.1) for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms (“the Council Regulation”) the minimum size for the landing of scallops remains 100 millimetres in the Shetland Islands and 110 millimetres in the area of coastline in the south west of mainland Scotland. Article 4 restricts the number of scallop dredges that can be towed at any time by British fishing boats in the Scottish zone, and the way in which such dredges can be deployed. Article 5 provides for two alternative exemptions from the restrictions in article 4, in so far as they apply to scallop dredging by British fishing boats within the Scottish zone. The exemptions are that the restrictions in article 4 do not apply in two specified situations in which the total length of any tow bar deployed does not exceed 7.5 metres, no more than 2 tow bars are deployed at any time and no more than 8 scallop dredges are towed from either side of the fishing boat. Article 6 imposes a requirement for a fully functional remote electronic monitoring system to be installed on board a British fishing boat while it is engaged in scallop dredging in the Scottish zone. This requirement does not apply to any boat which is exempt from the restrictions in article 4, by virtue of article 5. Nor does it apply to any boat which dredges for king scallops within the Scottish zone, but solely in that part of the Scottish zone which does not form part of Scottish inshore waters or any other part of the territorial sea of the United Kingdom adjacent to Scotland. Article 7 revokes article 5 of the Prohibition of Fishing for Scallops (Scotland) Order 2003 (S.S.I. 2003/371), as that provision is superseded by this Order. Offences for breach of this Order are contained in section 1(7) and 3(5) of the Sea Fish (Conservation) Act 1967 (“the Act”). Penalties, which are set out at section 11 of the Act, include a fine not exceeding £50,000 on summary conviction and a fine on conviction on indictment. The court may impose an additional fine not exceeding the value of the fish caught in contravention of the Act or caught with fishing gear that contravened the Act. The court may also order the forfeiture of that fish or fishing gear. For the purposes of this Order, a British sea-fishery officer has the powers conferred by section 15 of the Act, by Part 7 of the Marine (Scotland) Act 2010 (asp 5) and by sections 35, 36 and 39 of the Aquaculture and Fisheries (Scotland) Act 2013 (asp 7). The Order was made in accordance with the procedure set out in Article 46 of the Council Regulation. Article 46 of the Council Regulation authorises Member States to take certain national measures for the conservation and management of local stocks. The provisions contained in the Order were notified in draft to the European Commission in accordance with the requirements of Article 5 of Directive (EU) 2015/1535 of the European Parliament and of the Council laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (codification) (OJ L 241, 17.9.2015, p.1). A Business and Regulatory Impact Assessment has been prepared in relation to this Order and placed in the Scottish Parliament Information Centre. A copy of this can be obtained from Marine Scotland, the Scottish Government, Victoria Quay, Edinburgh EH6 6QQ.

Read the full note and every offence in this 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 0.59.

Basis
the penalty comes from the enabling Act rather than from this instrument
Confidence
0.59 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