Provision against danger to navigation

Q: Is article 17(2) of The London Gateway Port Harbour Empowerment Order 2008 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 an harbour authority meant to do it, knew about it, or was careless.

article 17(2) of The London Gateway Port Harbour Empowerment Order 2008

Status not determined
Strict liability
Either way
Housing, planning, heritage and land

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, without reasonable excuse, the Harbour Authority fails to notify the PLA or to act in accordance with any direction given under this article, the Harbour Authority shall be liable on summary conviction to a fine not exceeding the statutory maximum and on conviction on indictment to a fine.

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 This is the text as originally made; later amendments are not shown here.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 harbour authority
Conduct: failing to notify or register
Fault element: Strict liability
Burden of proof: An element of the offence, for the prosecution to prove

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 harbour authority 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.

“Without reasonable excuse” here is an element of the offence rather than a defence, so its absence is for the prosecution to prove (R v Charles [2009] EWCA Crim 1570).

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision; qualified by reasonable excuse (an element; prosecution disproves once raised).

The defence, as drafted

2 If, without reasonable excuse, the Harbour Authority fails to notify the PLA or to act in accordance with any direction given under this article, the Harbour Authority shall be liable on summary conviction to a fine not exceeding the statutory maximum and on conviction on indictment to a

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.

Not telling the authority about an event the instrument makes notifiable under the London Gateway Port Harbour Empowerment Order 2008, or telling them after the period allowed has run out.
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.

Environmental offences: definitive guideline Magistrates' courts and the Crown Court in England and Wales · in force from 1 July 2014
Covers unauthorised or harmful deposit, treatment or disposal of waste, illegal discharges to air, land and water, and the equivalent offences committed by organisations. It is the guideline that introduced turnover bands for corporate fines, so the size of the defendant company is a starting point rather than a mitigating detail.
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

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: 2 May 2008
In force from: 16 May 2008
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 authorises the construction and use of a new port at Shell Haven, Stanford-le-Hope, Thurrock in the County of Essex. This Order also establishes a new Harbour Authority for the port. A copy of the deposited plans and the deposited sections and the relevant charts mentioned in this Order may be inspected free of charge during working hours at the offices of London Gateway Port Limited at The Manorway, Stanford-le-Hope, Essex, SS17 9PD.

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.

Planning Bill Lords · 10 November 2008 · Lord Berkeley
My Lords, I shall speak to Amendments Nos. 121A to 121G and 121J in this group, which cover what we might call the other end of the spectrum from the amendments tabled by the noble Lords, Lord Jenkin and Lord Dixon-Smith, on the subject of by-laws and what is and is not included. It would be helpful if I divided my remarks into three groups. The first refers to Amendments Nos. 121A, 121B and 121G, which refer…
Localism Bill Lords · 19 July 2011 · Lord Boyd of Duncansby
My name is also associated with Amendment 166U. At one stage, I had thought that I had put my name to one or two of the other amendments and it indeed appeared in earlier versions of the Marshalled List. However, for some reason my name seems to have been disassociated with those amendments. Nevertheless, I support the thrust of the amendments of the noble Lord, Lord Jenkin, and I emphasise the need for a seamless…
Localism Bill Lords · 17 October 2011 · Lord Boyd of Duncansby
My Lords, this is the first time that I have spoken on Report, so I repeat my declaration of interest: I am a solicitor in private practice and registered as a foreign lawyer in England and Wales, and some of my practice involves planning. I recollect that in Committee I stood to support amendments in terms very similar to those before the House this evening. I cannot now recollect in whose names the amendments…
Access to Ports Commons · 27 March 2014 · Stephen Hammond
“Finally” in terms of the point about sulphur. There is so much to tackle on this fascinating subject that I must disappoint hon. Members. I probably have at least another five minutes yet to go, and perhaps more. The Government’s position has been clear. We have sought to challenge the regulations, but we are now ensuring that we work with the whole industry to mitigate the cost to industry. Therefore, I—or my…

Other offences in the same instrument

Fine for obstructing worksarticle 15(1)
Incorporation of the Harbours, Docks and Piers Clauses Act 1847article 3(2)
Obstruction of officersarticle 48(1)
Obstruction of officersarticle 48(2)

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

This provision on legislation.gov.uk The authoritative text. Check it before relying on anything here.
The London Gateway Port Harbour Empowerment Order 2008 Every offence this instrument creates, and its explanatory note
Housing, planning, heritage and landOther offences on the same subject
Offences created in 2008