UK Offence Report

1 An employer who fails to comply with regulation 6(2), 7(1) or (4), 8, 9 or 16 shall be guilty of an…

regulation 17(1) of The Merchant Shipping (Working Time: Inland Waterways) Regulations 2003

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

1 An employer who fails to comply with regulation 6(2), 7(1) or (4), 8, 9 or 16 shall be guilty of an offence, punishable on summary conviction by a fine not exceeding level 5 on the standard scale.

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 This is the text as originally made; later amendments are not shown here.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
an employer
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 an employer 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

2 In any proceedings for an offence under these Regulations it shall be a defence for the defendant to show that all reasonable steps had been taken by him to ensure compliance with the Regulations.

What would breach regulation 17(1)?

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. On these words an offence is committed where an employer fails to comply with regulation 6(2), 7(1) or (4), 8, 9 or 16.
  2. Not doing what the provision requires under the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003, by the time it requires it to be done.
  3. 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
£5,000
Standard scale
Level 5
Maximum prison (summary)
Not determined

this is the level 5 value when the instrument came into force (2003-12-24); the standard scale is keyed to the date the offence was committed, and for conduct today the same words mean an unlimited fine.

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
27 November 2003
In force from
24 December 2003
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 Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations implement Council Directive 93/104/EC concerning aspects of the organization of working time (OJ No. L 307, 13.12.1993, p.18), as inserted by Directive 2000/34/EC of the European Parliament and of the Council (OJ No. L 195, 1.8.2000, p.41), so far as the Directive applies to mobile workers on inland waterways. The Regulations are made under the powers contained in the Merchant Shipping Act 1995 except in respect of regulation 18 and some of the amendments Schedule 2, where the power is provided by section 2(2) of the European Communities Act 1972. Subject to the exceptions in Part 3 of the Regulations, a worker to whom the Regulations apply should not work more than 48 hours a week, averaged over a reference period of 17 weeks, and the worker’s employer should take all reasonable steps to ensure that the limit is complied with (regulation 6). A reference period of 26 weeks applies in the case of a worker to whom regulation 14 applies (e.g. where there is a foreseeable surge of activity, as may be the case in relation to tourism). By virtue of regulation 15 a different reference period not exceeding 52 weeks applies where there has been a collective or workforce agreement to that effect and there are objective or technical reasons, or reasons concerning the organisation of work, justifying a longer reference period. A worker is entitled to adequate rest (regulation 10) and, whatever the reference period applying to the worker, the total number of hours comprised in rest periods is not to be less than 77 for each seven days. Regulation 11 provides for a worker’s entitlement to paid annual leave. Regulation 7 is concerned with health assessments where a worker is a “night worker” within the meaning in the Regulations. Companies may be required to provide information on night workers to the Maritime and Coastguard Agency. An employer must keep records of the hours worked by workers (regulation 9). Regulation 18 makes provision in respect of complaints to an employment tribunal. Regulation 19 prevents contracting out of the provisions of the Regulations (subject to exceptions). Regulation 20 and Schedule 2 contain amendments to primary and secondary legislation. A Regulatory Impact Assessment has been produced and a copy placed in the library of both Houses of Parliament. Copies may be obtained from the Maritime and Coastguard Agency, Spring Place, 105 Commercial Road, Southampton SO15 1EG (telephone number 02380 329216). A transposition note has been prepared and copies may be obtained from the Seafarer Health and Safety Branch of the Maritime and Coastguard Agency (at the address given above). Merchant Shipping Notices are published by the Maritime and Coastguard Agency. Copies may be obtained from Mail Marketing (Scotland), Bloomsgrove Industrial Estate, Norton Street, Nottingham NG7 3JG (telephone number 0115 9013336; fax 0115 9013334; e-mail mca@promo-solution.com).

Read the full note and every offence in this instrument

What Parliament said

Mentions of this instrument in Hansard. Parliamentary material is reused under the Open Parliament Licence v3.0.

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”; the provision says the conduct is “punishable”
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