UK Offence Report

Incorporation of the Harbours, Docks, and Piers Clauses Act 1847

article 3(2) of The Tobermory Harbour Empowerment 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

2 In construing the provisions of the 1847 Act as incorporated with this Order—

a the expression “the special Act” means this Order, the expression “the undertakers” means the Company and the expression “the harbour, dock, or pier” shall mean the harbour; and

b for the definition of the word “vessel” in section 3 (interpretations in this and the special Act) there shall be substituted the definition of that word in paragraph (1) of article 2 (interpretation);

c section

63 shall be read and have effect as if for the words from “be liable to” to the end of the section there were substituted the words “be guilty of an offence and shall be liable on summary conviction to

a fine not exceeding level

3 on the standard scale”

d section 65 (harbour master may remove vessel for purpose of repairing harbour or dock if the master neglects or refuses to do so) shall have effect subject to the omission of the words from “Provided always” to the end of the section.

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 This is the text as originally made; later amendments are not shown here.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 master
Conduct
failing to do something the instrument requires
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 master 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 3(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.

  1. Not doing what the provision requires under the Tobermory Harbour Empowerment Order 2017, by the time it requires it to be done.
  2. Doing it, but not in the manner or to the standard the instrument specifies.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
£1,000
Standard scale
Level 3
Maximum prison (summary)
Not determined

in Scotland a reference to a level is construed as referring to the standard scale as it currently stands (CP(S)A 1995 s.225(2)), not as it stood when the instrument was made.

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
9 June 2017
In force from
10 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, made following an application by Tobermory Harbour Association (“the Company”), empowers the Company to maintain the harbour at Tobermory (the limits of which are defined in the Order) and to regulate its use. Part 1 makes preliminary provision, including provision as to interpretation (article 2) and the incorporation with modifications of provisions in the Harbours, Docks and Piers Clauses Act 1847 (article 3). Part 2 gives the Company the power to maintain, use and operate the piers, pontoons and slipways existing in the harbour as at the date of this Order and to dredge the harbour and the approaches to it. Part 3 makes provision for regulation of the harbour. The Company is authorised to provide moorings within the harbour and to recover charges for vessels using them (article 9). It may also provide vehicle parking facilities within the harbour (article 11). By virtue of article 14 the Company is empowered to make byelaws for the efficient management and regulation of the harbour. The procedure for confirmation of proposed byelaws is set out in article 15. Under article 16, the Company may give general directions to vessels, which must be published in accordance with article 17, and the harbour master may issue a special direction to any vessel (article 18). Failure without reasonable excuse to comply with a general or special direction is an offence (article 20). Article 23 empowers any duly authorised officer of the Company, in certain circumstances and for certain purposes, to enter and inspect a vessel in the harbour. Article 24 makes provision regarding vessels adrift in the harbour, while Article 25 provides that the Company may remove obstructions (other than vessels, vehicles or wreck) from the harbour. Articles 26 and 27 give the Company the power to remove vehicles and goods left in the harbour in certain circumstances. Articles 28 to 35 make provision about charges that may be levied by the Company for services and facilities provided in relation to the harbour. Part 4 makes miscellaneous and general provision.

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 0.72.

Basis
the provision states liability on summary conviction; the provision states a penalty in older drafting
Confidence
0.72 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