What would breach article 34(1) of The Scotland Act 1998 (River Tweed) Order 2006?

On these words an offence is committed where a person fishes for or takes freshwater fish in contravention of a prohibition contained in a protection order made under article68. Doing the thing the provision prohibits under the Scotland Act 1998 (River Tweed) Order 2006, whatever the reason for doing it. Where the requirement is a positive duty, letting the time for performing it pass without performing it.

Contravention of protection order

Q: Is article 34(1) of The Scotland Act 1998 (River Tweed) Order 2006 a strict liability offence?

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.

article 34(1) of The Scotland Act 1998 (River Tweed) Order 2006

Status not determined
Strict liability
Either way
Miscellaneous

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 Any person who fishes for or takes freshwater fish in contravention of
a prohibition contained in
a protection order made under article68 shall be guilty of an offence, and liable on summary conviction to
a fine not exceeding level
3 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 This is the text as originally made; later amendments are not shown here.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: a person
Conduct: contravening a requirement of the instrument
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 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 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 34(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.

On these words an offence is committed where a person fishes for or takes freshwater fish in contravention of a prohibition contained in a protection order made under article68.
Doing the thing the provision prohibits under the Scotland Act 1998 (River Tweed) Order 2006, whatever the reason for doing it.
Where the requirement is a positive duty, letting the time for performing it pass without performing it.

Penalty

Mode of trial: Either way — magistrates’ court or Crown Court
Maximum fine: £1,000
Standard scale: Level 3
Maximum prison (summary): Not determined

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.

Imposition of community and custodial sentences: definitive guideline All courts in England and Wales
When a community order or custody is justified at all, and the presumption against short custodial sentences.
Reduction in sentence for a guilty plea: definitive guideline All courts in England and Wales · in force from 1 June 2017
The sliding scale of credit for pleading guilty, from one third at the first stage of proceedings downwards.
General guideline: overarching principles All courts in England and Wales · in force from 1 October 2019
The guideline a court uses when there is no offence-specific guideline, which is the position for the overwhelming majority of offences created by statutory instrument. It sets out how culpability and harm are assessed from first principles.
Totality: definitive guideline All courts in England and Wales
How to sentence more than one offence at once so that the total is just and proportionate - frequently in point here, because regulatory prosecutions commonly charge several breaches of the same instrument.

Prosecution figures

The Ministry of Justice records offences under this instrument against offence code 11607 — 11607 - Fishing salmon or freshwater fish in breach of The Scotland Act 1998 (River Tweed) Order 2006. That code may cover several provisions of the instrument, so a count against it is not a count of prosecutions under this provision alone.

No published per-offence figure was found for this provision. Offences created by statutory instrument very largely do not have their own code in the MoJ’s Outcomes by Offence data tool. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status: Status not determined
Made: 14 November 2006
In force from: 15 November 2006
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 Order applies to the Tweed district which includes the catchment of the River Tweed and the other rivers that run to the sea between, in the north a point on the coast at the boundary between the Scottish Borders and East Lothian and, in the south, a point on the coast west of Holy Island, and an adjacent area of sea. It consolidates, with some amendments, the existing salmon and freshwater fisheries legislation for the Tweed district. The Order makes provision in relation to the Tweed district by— a defining the Tweed district and Estuary limits of the RiverTweed; b providing for the establishment of the River Tweed Commission, with powers to administer salmon and freshwater fisheries in the district for the purposes of protection or improvement of the fisheries, preservation of salmon and freshwater fish, and stocking of the district with salmon or freshwater fish; c defining permissible methods of fishing for salmon and freshwater fish, and defining offences and penalties where there is non—compliance; d making provision for weekly and annual close times for fishing; e detailing offences relating to the sale, purchase and possession of salmon and trout; in relation to the disturbance or destruction of juvenile salmon and spawning beds, the balance between property rights in the bed of a river and conservation of juvenile salmon has been changed in favour of conservation, but provision is made for proprietors to obtain permission to undertake necessary works; f defining exemptions from certain offences or acts if done for scientific or other purposes; g enabling Scottish Ministers to make Orders in relation to the regulation of fisheries and for the conservation of salmon; h giving powers to water bailiffs and police constables to enforce the provisions of the Order; i providing for the making of protection orders, where appropriate, to make it an offence to fish for freshwater fish without legal right or written permission; j giving powers to wardens to enforce protection order provisions; k providing for the licensing and regulation of salmon dealers; l providing powers to the River Tweed Commission to prosecute in the courts in England and Wales; m making provision for the application of the Order to the Crown. This Order restricts the application of provisions in the enactments listed in Schedule4 to exclude the Tweed district, and makes consequential amendments. The Order replaces 19th, 20thand 21st Century legislation in respect of the Tweed district, which is repealed under Schedule4.

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.

Scotland Act 1998 (River Tweed) Order 2006 Lords · 27 June 2006 · The Duke of Montrose
My Lords, it falls to my lot to congratulate the noble and learned Lord the Advocate General on his maiden speech. We are very glad to have heard from him on these matters. We look forward to seeing him in his place many times in the future. He certainly joins a most distinguished band of Scottish lawyers who have graced the Floor of the House; though at present their numbers are not as plentiful as they once were,…
Delegated Legislation Commons · 4 July 2006 · Madam Deputy Speaker (Sylvia Heal)
With the leave of the House, I shall take motions 6 to 9 together. Motion made, and Question put forthwith, pursuant to Standing Order No. 118 (6) (Standing Committees on Delegated Legislation), International Immunities and Privileges That the draft European Organization for Nuclear Research (Privileges and Immunities) Order 2006, which was laid before this House on 25th May, be approved. Constitutional Law That…
Scotland Act 1998 (River Tweed) Amendment Order 2015 Lords · 1 December 2014 · The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)
My Lords, I beg to move that the draft order laid before the House on 20 October 2014 now be considered. I hope that it will be useful to the Committee if I provide some background information on the fisheries management arrangements that prevail in respect of the River Tweed, as well as a brief summary of what this order primarily seeks to achieve. Freshwater fisheries management and conservation in Scotland is…
Scotland Act 1998 (Specification of Devolved Tax) (Wild Fisheries) Order 2017 Lords · 29 November 2017 · Lord Beith (LD)
My Lords, my noble friend did not realise quite how far the provision he has just cited extends. Legislation, particularly the Scotland Act 1998 (River Tweed) Order 2006, embraces the whole of the Tweed district, which includes all the tributaries of the Tweed and tributaries of the rivers which are tributaries of the Tweed, whether they are in England or Scotland. Of course, many of them are in England, such as…

Other offences in the same instrument

Information for valuationarticle 17(3)
Power to conduct inquiries and to obtain informationarticle 21(3)
Methods of fishing: salmonarticle 22(1)
Methods of fishing: salmonarticle 22(2)
Methods of fishing: salmonarticle 22(3)
Methods of fishing: freshwater fisharticle 23(1)
1 Any person who— a uses any explosive substance with intent to take or destroy fish in any waters; b puts…article 26(1)
Any person who attempts to commit or who does any act preparatory to the commission of an offence mentioned…article 26(2)
Fishing for salmon without right or permissionarticle 27(1)
Illegal fishing by two or more persons acting togetherarticle 28
Taking of dead fisharticle 29(1)
Illegal possession of salmon or troutarticle 30(3)

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

This provision on legislation.gov.uk The authoritative text. Check it before relying on anything here.
The Scotland Act 1998 (River Tweed) Order 2006 Every offence this instrument creates, and its explanatory note
MiscellaneousOther offences on the same subject
Offences created in 2006