UK Offence Report

Duty of companies to comply with Article 4.1 of the Council Regulation

regulation 3 of The Merchant Shipping (ISM Code) (Ro-Ro Passenger Ferries) Regulations 1997

The provision has been revoked, but a saving provision keeps it prosecutable for conduct before a stated date. A person can still be charged with something it is no longer an offence to do.

What the provision says

3 Any company which fails to comply with Article 4.1 of the Council Regulation shall be guilty of an offence, and liable on summary conviction to

a fine not exceeding the statutory maximum, or on conviction on indictment, to imprisonment for

a term not exceeding two years, or

a fine, or both.

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 This is the text as originally made; later amendments are not shown here.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

The defence, as drafted

ged with an offence under these Regulations to show that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.

What would breach regulation 3?

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 Merchant Shipping (ISM Code) (Ro-Ro Passenger Ferries) Regulations 1997, 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
Either way — magistrates’ court or Crown Court
Maximum fine
£5,000
Maximum prison (summary)
Not determined
Maximum prison (on indictment)
2 years

expressed as the statutory maximum (the prescribed sum): the same words mean £5,000 in England and Wales and £10,000 in Scotland.

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, but still prosecutable
Revoked by
The Merchant Shipping (International Safety Management (ISM) Code) Regulations 2014 (revoked)
Revoked on
18 July 2014
Made
17 December 1997
In force from
20 January 1998
Extent
Not stated

How this was established: revoked, but a saving provision keeps the offence prosecutable for conduct before the stated date.

What the instrument is for

(This note is not part of the Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations provide for the enforcement of Council Regulation (EC) No 3051/95 on the safety management of ro-ro passenger ferries (“the Council Regulation”) which implements Chapter IX (Management for the Safe Operation of Ships) of the Safety of Life at Sea Convention 1974, as adopted by Assembly of the International Maritime Organisation in 1994, for all classes of ro-ro passenger ferries on services to and from the United Kingdom. The Regulations make it an offence for companies which operate regular ro-ro passenger ferry services to or from or within the United Kingdom not to comply with Article 4.1 of the Council Regulation (duty to comply with the International Safety Management Code —“the ISM Code”), and provide enforcement powers under which (under Article 7 of the Council Regulation) the operation of the service may be suspended and ships may be detained. There are ancillary provisions as to offences concerning documents and certificates issued pursuant to the Council Regulation and a general defence to offences under the Regulations.

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