UK Offence Report

Conflict of interest

paragraph 3(5) of SCHEDULE 3 of The Port Security (Avonmouth Dock and Royal Portbury Dock and Port of Bristol Security Authority) Designation Order 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

5 A person who fails to comply with the provisions of sub-paragraph (1) is guilty of an offence and liable on summary conviction to

a fine not exceeding level

4 on the standard scale unless the person proves that he or she did not know that the contract, proposed contract or other matter in which he or she had

a pecuniary interest was the subject of consideration at that meeting.

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 This is the text as originally made; later amendments are not shown here.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
Requires proof of a state of mind
Burden of proof
Legal burden on the defendant

The prosecution must prove both that the conduct happened and that it was done with the state of mind the provision names (know that).

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: mens rea word in the offence-creating words: know that.

The defence, as drafted

ction to a fine not exceeding level 4 on the standard scale unless the person proves that he or she did not know that the contract, proposed contract or other matter in which he or she had a pecuniary interest was the subject of consideration at that meeting.

What would breach paragraph 3(5) of SCHEDULE 3?

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 the provisions of sub-paragraph (1).
  2. Not doing what the provision requires under the Port Security (Avonmouth Dock and Royal Portbury Dock and Port of Bristol Security Authority) Designation Order 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
Summary only — tried in a magistrates’ court
Maximum fine
£2,500
Standard scale
Level 4
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.

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
11 February 2010
In force from
19 March 2010
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 is the first of a series of Orders to implement Directive 2005/65/EC of the European Parliament and of the Council of 26 October 2005 on enhancing port security (OJ L 310, 25.11.2005, p 28) (the “Directive”) at individual ports across the United Kingdom. The Directive was transposed, in relation to the whole of the United Kingdom, by the Port Security Regulations 2009 (S.I. 2009/2048). It extends previous European Union security requirements beyond the ship/port facility interface (essentially the docking areas) further into port estates (for example, into areas concerned with transportation, cargo storage and other commercial and operational activities at ports). In this Order Article 2 and Schedules 1 and 2 identify the boundaries of the port of Avonmouth Dock and Royal Portbury Dock, as required by Article 2.3 of the Directive and referred to in regulation 3(2) of the Port Security Regulations 2009. Article 3 provides for the establishment of the Port of Bristol Security Authority, and for its designation as the port security authority for the port of Avonmouth Dock and Royal Portbury Dock, as required by Article 5.1 of the Directive and referred to in regulation 5 of the Port Security Regulations 2009. Schedule 3 sets out provisions in relation to the membership and proceedings of the Port of Bristol Security Authority, including in relation to conflicts of interests amongst members, and also with regard to its status (namely not being a Crown body). An impact assessment in respect of this instrument has been prepared. It is available from the Department for Transport (Maritime Security Policy Branch), Zone 5/5th Floor, Southside, 105 Victoria Street, London SW1E 6DT and is annexed to the Explanatory Memorandum which is available alongside the instrument on the OPSI website (www.opsi.gov.uk). Copies of each document have been placed in the library of each House of Parliament.

Read the full note and every offence in this 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