UK Offence Report

d after paragraph (3) add— 3A Where a ship uses emission abatement technologies which are not— a permitted…

paragraph 12(d) of SCHEDULE 2 of The Merchant Shipping (Prevention of Air Pollution from Ships) (Amendment) 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

d after paragraph (3) add— 3A Where a ship uses emission abatement technologies which are not— a permitted in accordance with paragraph 7 or 8 of Schedule 2A, b authorised for the purposes of article 4c of the 1999 Directive by an EEA State other than the United Kingdom, or c authorised for the purposes of Annex VI by a Contracting Government other than the United Kingdom, the owner and master are guilty of an offence and punishable on summary conviction by a fine not exceeding the statutory maximum or on conviction on indictment by a fine. 3B A person who— a places on the market marine diesel oil that has a sulphur content exceeding 1.50 per cent by mass, or b places marine gas oil on the market in contravention of paragraph 9 of Schedule 2A, is guilty of an offence and punishable on summary conviction by a fine not exceeding the statutory maximum or on conviction on indictment by a fine. 3C A local supplier of fuel oil who fails to comply with a requirement under regulation 31A(1) is guilty of an offence and punishable on summary conviction by a fine not exceeding the statutory maximum or on conviction on indictment by a fine. 3D A person to whom a requirement under regulation 31A(2) is addressed who fails to comply with that requirement is guilty of an offence and punishable on summary conviction by a fine not exceeding the statutory maximum or on conviction on indictment by a fine. ; and

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 This is the text as originally made; later amendments are not shown here.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 comply with a notice or direction
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 paragraph 12(d) of SCHEDULE 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 a person fails to comply with a requirement under regulation 31A(1).
  2. Being served with a notice under the Merchant Shipping (Prevention of Air Pollution from Ships) (Amendment) Regulations 2010 and doing nothing by the date it specifies.
  3. Doing part of what the notice requires, where it required all of it.
  4. Disagreeing with the notice and ignoring it, rather than using whatever appeal the instrument provides.

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.

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
21 March 2010
In force from
20 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 amend the Merchant Shipping (Prevention of Air Pollution from Ships) Regulations 2008 (S.I. 2008/2924), primarily to implement provisions concerning the sulphur content of marine fuels contained in Council Directive 1999/32/EC of 26th April 1999 (O.J. No. L 121, 11.5.1999, p.13) relating to a reduction in the sulphur content of certain liquid fuels and amending Directive 93/12/EEC, as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council (O.J. No. L 284, 31.10.2003, p.1) of 29th September 2003 and Directive 2005/33/EC (O.J. No. L 191, 22.7.2005, p.59) of the European Parliament and of the Council of 6th July 2005. So far as these Regulations implement the amended 1999 Directive, they are made under section 2(2) of the European Communities Act 1972 (c.38). However, the Regulations also include (in paragraphs 2(c) and (d), 3(b), 4, 5, 7, 9, 10, 12(b), 13, 15 and 16 of Schedule 2) some minor adjustments that do not derive from that Directive, and to this extent are made under section 128 of the Merchant Shipping Act 1995 (c.21) as amended by the Merchant Shipping (Pollution) Act 2006 (c.8) and under the Merchant Shipping (Prevention of Air Pollution from Ships) Order 2006 (S.I. 2006/1248). In relation to paragraph 4 of Schedule 2A of the 2008 Regulations, as inserted by Schedule 1 of these Regulations, Marine Guidance Note 400 (M+F) provides guidance on the term “hotelling” (which is used in the definition of “ship at berth”) and what is a period of time sufficient to allow crew to complete any necessary fuel changeover operations. An impact assessment has been prepared and copies may be obtained from the Maritime and Coastguard Agency, Spring Place, 105 Commercial Road, Southampton SO15 1EG. A copy has also been placed in the library of each House of Parliament. The impact assessment and transposition note are also annexed to the Explanatory Memorandum which is available alongside these Regulations on the OPSI website at www.opsi.gov.uk. Merchant Shipping Notices and Marine Guidance Notes are published by the MCA. Copies are available from M-Notices Subscriptions, P O Box 362, Europa Park, Grays, Essex RM17 9AY (telephone number 01375 484548; fax 01375 484556; e-mail orders mnotices@ecgroup.co.uk). They may also be accessed on the MCA’s website www.mcga.gov.uk, which also has details of any amendments or replacements. The Revised Convention for Rhine Navigation can be obtained from the Central Commission for Navigation on the Rhine, Palais du Rhin 2, Place de la Republique, 67082 Strasbourg (telephone number + 33 (0)3 88 52 20 10; fax + 33 (0).

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.

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 0.96.

Basis
the provision says a person is “guilty of an offence”; the provision says the conduct is “punishable”
Confidence
0.96 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