UK Offence Report

Provision against danger to navigation

article 17(2) of The Porthmadog Harbour Revision Order 1998

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 If the Council fail to notify the Trinity House as required by paragraph (1) above, or to comply in any respect with

a direction given under the said paragraph they 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

a fine; but it shall be

a defence for the Council to prove that all due diligence was exercised to avoid the commission of the 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 This is the text as originally made; later amendments are not shown here.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
failing to notify or register
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

utory maximum or on conviction on indictment to a fine; but it shall be a defence for the Council to prove that all due diligence was exercised to avoid the commission of the offence.

What would breach article 17(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 telling the authority about an event the instrument makes notifiable under the Porthmadog Harbour Revision Order 1998, or telling them after the period allowed has run out.
  2. Assuming a notification made for another purpose, or by somebody else, satisfies this requirement.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
£5,000
Maximum prison (summary)
Not determined

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
Status not determined
Made
9 March 1998
In force from
1 April 1998
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 repeals and replaces the local legislation applying to Porthmadog harbour, namely an Act of 1821 and the Porthmadog Harbour Revision Order 1974. The Order re-enacts provisions of the 1974 Order with amendments, and it confers further powers on the harbour authority, Gwynedd Council (successors in title of the Trustees who were the harbour authority mentioned in the 1974 Order, article 2). The further powers include powers as to— a dredging and provision of dredgers; b boating facilities; c moorings; d the removal of unserviceable vessels; e charging for services and facilities; and f the making of byelaws. The Order also establishes a new consultative committee for the harbour in place of the Porthmadog Harbour Committee constituted under the 1974 Order.

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