UK Offence Report

Offences and penalties

regulation 22(2) of The Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Biological Agents) 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

2 An employer who fails to comply with regulation

11 is guilty of an offence and is liable on summary conviction to

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 This is the text as originally made; later amendments are not shown here.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
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 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 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 regulation 22(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.

  1. On these words an offence is committed where an employer fails to comply with regulation 11.
  2. Not doing what the provision requires under the Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Biological Agents) 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
£5,000
Standard scale
Level 5
Maximum prison (summary)
Not determined
Maximum prison (on indictment)
2 years

this is the level 5 value when the instrument came into force (2010-04-06); 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
11 February 2010
In force from
6 April 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 Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations implement, in relation to United Kingdom ships (as defined by regulation 2), Directive 2000/54/EC on the protection of workers from risks related to exposure to biological agents at work (Official Journal No. L 262, 17/10/2000 p. 21). Directive 2000/54/EC is an individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC, on the introduction of measures to encourage improvements in the health and safety of workers at work. Regulations 2 and 3 set out meanings for terms used in the Regulations. Regulations 4and 5 set out the precise application of the Regulations and apply certain regulations also to non-United Kingdom ships when they are in UK waters. In the case of an activity likely to involve the risk of exposure to biological agents, regulation 6 imposes particular duties on an employer in relation to the risk assessment which the employer is required to carry out under regulation 7 of the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997 (1997/2962). Regulation 7 requires employers to provisionally classify biological agents that present a hazard to workers but which do not yet appear in the list of such agents set out in Annex III to the Directive or the Approved List of biological agents published by the HSE, to notify the Secretary of State and the HSE when that is done and to comply with these regulations as if those agents did so appear. Regulations 8 and 9 place employers under duties in relation to the replacement of biological agents and the prevention and reduction of exposure to them. Regulation 10 specifies types of information which an employer, whose assessment under regulation 6 reveals risks to health and safety, must make available to the Secretary of State upon request. Regulation 11 requires employers to take appropriate measures as respects hygiene and individual protection in relation to any activity involving a risk of contamination. Regulations 12 and 13 specify the information and training that employers must provide for workers as well as imposing obligations as to the reporting of accidents and providing for access to relevant information. Regulation 14 requires the keeping of a list of workers exposed to certain biological agents. Regulation 15 imposes a general duty on employers to consult with workers or their representatives about matters covered by these Regulations. Regulation 16 requires prior notification to the Secretary of State when use is to be made for the first time of biological agents within certain groups, when certain biological agents not previously notified are used for the first time and when safety procedures or processes are substantially changed. Regulation 17 requires employers to ensure that there are arrangements whereby workers for whom an assessment under regulation 6 reveals a risk to health are kept under health surveillance and makes detailed provision as to such surveillance. Regulation 18 requires employers to keep specified records for 10 years following the end of exposure to biological agents but for 40 years in certain instances and to pass the records to the Secretary of State if they cease to trade. Regulation 19 makes provision for the risk assessment to take account of particular factors where the ship has health or veterinary care facilities and for the employer to take appropriate measures in respect of those facilities. Regulation 20 makes provision for the employer to adopt containment measures and apply containment levels relevant to the potency of certain biological agents that may exist in laboratories or rooms for laboratory animals on ship, to apply certain containment principles in respect of industrial processes and to require both the written approval of the Secretary of State for the industrial use of such agents and compliance with measures relating to that use made conditions of that approval. Regulation 21 prescribes other persons whose duty it is to comply with the provisions of the Regulations and requires workers to make proper use of protective clothing and equipment and to give effect to instructions and training. Regulations 22 to 29 concern offences, penalties, inspection, detention of ships and compensation for wrongful detention. Regulation 30 prohibits the levying of any charge on a worker in respect of anything done or provided in pursuance of any specific requirement of these Regulations. These Regulations are made under powers contained in the Merchant Shipping Act 1995, except in their application to Government ships (defined in regulation 2(1)) where the power is provided by section 2(2) of the European Communities Act 1972. A full impact assessment of the effect that this instrument will have on the costs of business and the voluntary sector is available from the Maritime and Coastguard Agency, Spring Place, 105 Commercial Road, Southampton SO15 1EG (telephone number 02380 329100). A copy of that assessment is annexed to the Explanatory Memorandum which is available on the Office of Public Sector Information website – www.opsi.gov.uk. A copy of both the impact assessment and the Transposition Note 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 and may be downloaded from http://www.mcga.gov.uk. Any amendment to that Transposition Note to record amendments to relevant Annexes to the Directive will be made similarly available. Merchant Shipping Notices are published by the MCA and copies may be obtained from M-Notices Subscriptions, PO Box 362, Europa Park, Grays, Essex RM17 9AY (telephone number 01375 484 548; fax 01375 484 556; email orders mnotices@ecgroup.co.uk). A copy may also be downloaded from http://www.mcga.gov.uk. That website also has details of any amendments or replacements. A copy of the Approved List of biological agents published in 2004 by the Health and Safety Executive may be downloaded from http://www.hse.gov.uk/pubns/misc208.pdf. The Directive may be downloaded from http://www.eur-lex.europa.eu/en/index.htm.

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”; the provision states liability on summary conviction
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