UK Offence Report

Lights on tidal works during construction

article 16(2) of The Portsmouth (Continental Ferry Port Berth 2 Extension) Harbour Revision Order 2011

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 Subject to paragraph (3), if the City Council fails to comply in any respect with a direction given under paragraph (1), it 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 This is the text as originally made; later amendments are not shown here.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
a person
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 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; other provisions of the same instrument use a mens rea word while this one does not (the Cundy v Le Cocq contrast).

What would breach article 16(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. Not doing what the provision requires under the Portsmouth (Continental Ferry Port Berth 2 Extension) Harbour Revision Order 2011, by the time it requires it to be done.
  2. 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
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
16 December 2011
In force from
16 January 2012
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 empowers Portsmouth City Council (“the City Council”) as the harbour authority for the Continental Ferry Port (the Mile End Quay undertaking – defined in article 2(1)) to construct works extending Berth 2 in a westerly direction for 49.4 metres or thereabouts by the construction of two mooring dolphins (article 4) within the limits of deviation on the deposited plan (defined in article 2(1))(article 5), and confers further powers as to the foreshore and bed of the sea in respect of those works (article 6) and as to subsidiary works (article 7). The Order also empowers the City Council- 1 to set apart and appropriate all or any part of the Mile End Quay undertaking for the use and accommodation of a particular trade, person, vessel or class of vessel or goods (article 8); 2 to recover rates which the master of a vessel has neglected or refused to pay as a debt in any court of competent jurisdiction (article 10); and 3 once the construction of those works is complete, for harbour purposes, to lease, or grant the use or occupation of, any lands, works, buildings, equipment or other property forming part of the Mile End Quay undertaking (article 19). The Order incorporates provisions of the Harbours, Docks and Piers Clauses Act 1847 (c.27) subject to certain modifications (article 3) and all fines or forfeitures recoverable under that Act so incorporated or under bye-laws made in pursuance of section 83 of that Act may be recovered summarily (article 18). The Harbour Master (defined in article 2(1)) may prevent the removal or sailing from those works of any vessel until payment of any ship, passenger and goods dues and other charges (article 11). The Order creates an offence of, without lawful authority, intentionally or recklessly obstructing the carrying out of those works with a fine on summary conviction not exceeding level 3 on the standard scale (article 12). Articles 13 to 17 make provision against danger to navigation and for the abatement of works abandoned or decayed, the surveying of a tidal work (defined in article 2(1)) and the lighting of tidal works during construction and permanently. The Secretary of State may cause inquiries to be held for the purposes of the exercise of any of his powers or duties under the Order (article 24). A full regulatory impact assessment has not been produced for this instrument as no impact on the private or voluntary sectors is foreseen and the impact on business is minimal. The deposited plan and sections may be inspected during working hours at the office of the City Solicitor, Portsmouth City Council, Civic Offices, Guildhall Square, Portsmouth PO1 2PX.

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 0.72.

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