UK Offence Report

Offences and penalties

regulation 26(2) of The Merchant Shipping (Marine Equipment) Regulations 2016 (revoked)

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 It is an offence for

a person—

a to affix

a conformity mark to equipment which has not been granted EU conformity approval;

b to fail to comply with regulation 14, 15, 20,

21 or 22;

c to forge, counterfeit or otherwise alter, deface or remove any conformity mark or identification number affixed to equipment under these Regulations; or

d to fail to comply with

a direction, prohibition or restriction given under regulation 25.

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 This is the text as originally made; later amendments are not shown here.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
Legal burden on the defendant

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 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: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

The defence, as drafted

In any proceedings for an offence under these Regulations, it is a defence for the person charged to show that all reasonable steps had been taken by that person to ensure compliance with the provision concerned.

What would breach regulation 26(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. Being served with a notice under the Merchant Shipping (Marine Equipment) Regulations 2016 and doing nothing by the date it specifies.
  2. Doing part of what the notice requires, where it required all of it.
  3. 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
Unlimited
Maximum prison (summary)
Not determined
Maximum prison (on indictment)
2 years

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
31 October 2016
In force from
5 December 2016
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 Directive 2014/90/EU of the European Parliament and of the Council of 23 July 2014 on marine equipment and repealing Council Directive 96/98/EC (OJ L257, 28.8.2014, p. 146) (“the Directive”). Part 1 (regulations 1 to 4) contains introductory provisions and a power to designate notified and nominated bodies. Regulation 2 contains interpretation provisions. Regulation 3 applies the Regulations to all United Kingdom ships wherever they may be. Regulation 4 gives the Secretary of State a power to designate notified and nominated bodies to carry out conformity assessment procedures. These procedures assess and confirm that equipment complies with the relevant design, construction and performance standards, ensuring uniform levels of safety and environmental protection are achieved. Part 2 (regulations 5 to 10) provides for requirements to apply to equipment placed on board a ship and for exemptions from those requirements. Regulation 5 requires equipment placed on board a ship to meet the design, construction and performance standards specified in Annexes 1 to 3 of Merchant Shipping Notice MSN 1874 and to be approved in accordance with the conformity assessment procedures in Parts 3 and 4 of the Regulations. Regulation 6 sets out the manner in which regulations 7 to 9 apply. Regulations 7 to 9 enable the Secretary of State to allow equipment that does not meet applicable international standards to be placed on board a ship in certain specified circumstances, subject to any restrictions or conditions imposed. Regulation 10 requires the Secretary of State to inspect equipment on a ship that transfers to the UK Register to ensure the equipment complies with its safety certificates and with applicable international standards or is equivalent to equipment that complies with those standards. Part 3 (regulations 11 to 17) makes provision for EU conformity procedures and related matters. Regulation 11 provides for applications to notified bodies for EU conformity approval of equipment following the conformity procedures set out in Annex II of the Directive. Regulation 12 sets out the approval procedure for notified bodies and prescribes (also by reference to Annex II of the Directive) the requirements that must be fulfilled for granting EU conformity approval. Regulation 13 provides for the amendment of conformity approvals. Regulations 14 and 15 require manufacturers of equipment to issue declarations of conformity and affix conformity marks as prescribed. Regulation 16 requires a manufacturer located outside the EU to appoint an authorised representative situated in the EU. Part 4 (regulations 17 and 18) makes provision for conformity approval of equipment on UK ships to which EU conformity approval procedures do not apply and for related matters. Regulation 17 requires a manufacturer to apply to a nominated body for conformity approval of equipment to be placed on board a domestic passenger ship or fishing vessel in accordance with the procedures set out in Part II of Merchant Shipping Notice 1874. Regulation 18 sets out the approval procedures for a nominated body and the requirements that must be fulfilled for conformity approval to be granted by reference to Merchant Shipping Notice 1874. Part 5 (regulations 19 to 22) sets out obligations on economic operators. Regulation 19 sets out the manner in which regulations 20 to 22 apply. Regulation 20 imposes obligations on manufacturers during and after the EU conformity approval process and applies these obligations to distributors and importers in specified circumstances. Regulation 21 imposes an obligation on importers which place equipment on the market. Regulation 22 imposes obligations on economic operators generally to comply with certain requests from market surveillance authorities and competent national authorities. Part 6 (regulations 23 to 28) makes provision for enforcement. Regulation 23 enables notified bodies to suspend or withdraw their EU conformity approvals in certain circumstances. Regulations 24 allows the Secretary of State to carry out sample checks of equipment for market surveillance purposes. Regulation 25 enables the Secretary of State to take action where equipment complies with applicable international standards, but is nonetheless considered a threat to the safety of persons on board a ship or to the marine environment. Regulation 26 creates offences and provides penalties for breach of these Regulations, and provides a “reasonable steps” defence for those offences. Regulation 27 provides for the detention of ships in certain circumstances. Regulation 28 enables the enforcement powers in sections 258 to 266 of the Merchant Shipping Act 1995 to be used in relation to Government ships. Part 7 (regulations 29 to 32) contains miscellaneous provisions. Regulation 29 requires the Secretary of State to carry out market surveillance in accordance with the EU market surveillance framework. Regulation 30 requires the Secretary of State to review the operation and effect of the Regulations and publish a report within 5 years after they come into force and every five years after that. Following a review, it will fall to the Secretary of State to consider whether the Regulations should continue in force with or without amendment. A further instrument would be needed to revoke the Regulations. Regulation 31 introduces the Schedule which makes consequential amendments to other legislation. Regulation 32 revokes the Merchant Shipping (Delegation of Type Approval) Regulations 1996, the Merchant Shipping (Marine Equipment) Regulations 1999 and the Merchant Shipping (Marine Equipment) (Amendment) Regulations 2009; and makes a savings provision in respect of the revoked Regulations for equipment placed on board a ship before these Regulations come into force. An impact assessment of the effect of these Regulations on the cost to business is published with the Explanatory Memorandum and Transposition Note alongside this instrument on www.legislation.gov.uk. Merchant Shipping Notices are published by the Maritime and Coastguard Agency. Copies may be downloaded from the MCA’s website https://www.gov.uk/government/organisations/maritime-and-coastguard-agency or by e-subscription from mnotices@ecgroup.co.uk with ‘Subscribe’ in the subject heading, or from M-Notices Subscriptions, P.O. Box 362, Europa Park, Grays Essex RM17 9AY, tel 01375 484548, fax 01375 484556. A copy of the Directive is available on the website, http://eur-lex.europa.eu, and copies of the international instruments can be obtained from the International Maritime Organisation (IMO) at www.imo.org/Publications, by e-mail from sales@imo.org or by post from the IMO, 4 Albert Embankment, London, SE1 7SR, tel +44 (0)20 7735 7611, fax +44 (0)20 7587 3241 as a priced publication.

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 0.90.

Basis
the provision says “it is an offence”; the provision says an offence is committed “if” something happens
Confidence
0.90 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