UK Offence Report

Offences and penalties

regulation 21(1) of The Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Asbestos) Regulations 2010

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 A person who fails to comply with regulation 5, 7, 8, 10, 17(1), (3), (5), (6), (7), (8) or (10) or 18(1), (2) or (3) is guilty of an offence and liable—

a on summary conviction, to

a fine not exceeding the statutory maximum, and

b on conviction on indictment to imprisonment for

a term not exceeding two years or

a to fine, or to 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 This is the text as originally made; later amendments are not shown here.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 person
Conduct
failing to do something the instrument requires
Fault element
Mixed — some elements strict, some not
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove the conduct, and - for those elements the provision qualifies - the state of mind it names. The remaining elements carry no fault requirement, so they are strict.

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: the offence itself carries no fault word, but a duty it criminalises by cross-reference uses so far as is reasonably practicable, reasonably practicable; which element that governs was not determined.

What would breach regulation 21(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 a person fails to comply with regulation 5, 7, 8, 10, 17(1), (3), (5), (6), (7), (8) or (10) or 18(1), (2) or (3).
  2. Not doing what the provision requires under the Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Asbestos) Regulations 2010, 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
Either way — magistrates’ court or Crown Court
Maximum fine
£2,500
Standard scale
Level 4
Maximum prison (summary)
Not determined
Maximum prison (on indictment)
2 years

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
14 December 2010
In force from
10 January 2011
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 83/477/EEC of 19 September 1983 on the protection of workers from the risks related to exposure to asbestos at work (second individual Directive within the meaning of Article 8 of Directive 80/1107/EEC) (O.J. L No. 263, 24.09.1983, p.25), as amended by Council Directive 91/382/EEC of 25 June 1991 (O.J. L No. 206, 29.07.1991, p.16), Council Directive 98/24/EC of 7 April 1998 (O.J. L No. 131, 5.5.1998, p. 11), Directive 2003/18/EC of the European Parliament and of the Council of 27 March 2003 (O.J. L No. 97, 15.04.2003, p.48), and Directive 2007/30/EC of the European Parliament and of the Council of 20 June 2007 (O.J. L No. 165, 27.6.2007, p.21). The Regulations apply to United Kingdom ships, and (as respects regulations 25 and 27 only) to other ships while in United Kingdom waters. They apply to activities in which workers on ships are or may be exposed to asbestos (regulation 4). They impose obligations on employers, workers and other persons who have control of matters to which the Regulations relate (regulations 4 and 20). The Regulations require an assessment of risk before carrying out work relating to asbestos (regulation 5) and notification to the Secretary of State (regulation 6). Certain activities are prohibited (regulation 7); others may take place only where exposure to asbestos is minimised and air quality is measured (regulations 8 to 10). Special provision is made in relation to maintenance and demolition of ships (regulations 11 and 12) and for access to work areas (regulation 14). Provision is made for training, hygiene, information, health surveillance, the maintenance of a register of workers, notification of cases and consultation of workers (regulations 13 and 15 to 19). There is provision for enforcement (regulations 21 to 28). The charging of workers in respect of anything done or provided in accordance with these Regulations is prohibited (regulation 29). These Regulations are made under the powers in the Merchant Shipping Act 1995 except in respect of their application to Government ships where the power is provided by section 2(2) of the European Communities Act 1972. Merchant Shipping Notices can be read or downloaded free from the Maritime and Coastguard Agency website (www.mcga.gov.uk). Printed copies can be obtained from M-Notices Subscriptions, PO Box 362, Europa Park, Grays, Essex, RM17 9AY (telephone number 01375 484548, fax number 01375 484556 and email mailto:mnotices@ecgroup.co.uk). An impact assessment of the effect of these Regulations on the cost of business has been prepared and copies can be obtained from the Maritime and Coastguard Agency, Spring Place, 105 Commercial Road, Southampton, SO15 1EG. A copy has been placed in the library of each House of Parliament. A copy of the Transposition Note is also available from the Maritime and Coastguard Agency. These documents are also annexed to the Explanatory Memorandum which is available on the Office of Public Sector Information website ( http://www.opsi.gov.uk).

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