UK Offence Report

2 Any failure by a master to comply with a requirement under regulation 32(5)(b) is an offence.

regulation 38(2) of The Merchant Shipping (Prevention of Pollution from Noxious Liquid Substances in Bulk) Regulations 2018

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 Any failure by

a master to comply with

a requirement under regulation 32(5)(b) is an offence.

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 This is the text as originally made; later amendments are not shown here.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 master
Conduct
breaching the provision
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 master 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 prove that that person took all reasonable steps and exercised all due diligence to ensure that the regulation in question was complied with. 2 Without prejudice to paragraph (1), in any proceedings for an offence comprising a contravention of regulation 24 or 26(2

What would breach regulation 38(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. Doing what the provision prohibits, or failing to do what it requires under the Merchant Shipping (Prevention of Pollution from Noxious Liquid Substances in Bulk) Regulations 2018.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
Unlimited
Maximum prison (summary)
Not determined

'to a fine' with no stated maximum.

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
5 February 2018
In force from
12 March 2018
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 the revised version of Annex II of the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 (“the MARPOL Convention”). Annex II contains regulations for the Control of Pollution by Noxious Liquid Substances in Bulk. As a consequence of these Regulations, the Merchant Shipping (Dangerous or Noxious Liquid Substances in Bulk) Regulations 1996 (S.I. 1996/3010) and amending instruments (S.I. 1998/1153 and S.I. 2004/930) which implemented the previous version of Annex II, are revoked. Other consequential amendments and partial revocations are also made. Future amendments of provisions of the Convention and other instruments specified in these Regulations will be automatically incorporated into the Regulations by way of ambulatory reference (regulation 4). The current version of Annex II came into force internationally on 1st January 2007 and further modifications have been made since that time. One of the key changes is to the way in which noxious liquid substances (“NLS”) are categorised; products are assigned to one of four pollution categories based on an evaluation of their potential harm to the marine environment. Part 2 of the Regulations provides for the survey and certification of ships which are intended for, or engaged in, the carriage of NLS in bulk. It mainly applies to United Kingdom ships, but also includes provision for the survey of other NLS ships by UK authorities (regulation 17), and prohibiting other NLS ships from proceeding to sea in certain circumstances (regulation 21). Part 3 of the Regulations imposes operational requirements on the carriage, discharge and unloading of NLS and on the documentation required to be carried on board an NLS ship. Part 3 applies to UK NLS ships wherever they are, and to other NLS ships in UK waters. In addition, regulations 24 (control of discharges of NLS from ships) and 26 (prohibition on the carriage and discharge of unassessed liquid substances) also apply to ships other than NLS ships and to ships other than UK ships which make a discharge which has caused, or is likely to cause, pollution within UK waters. Part 4 of the Regulations applies provisions of the Polar Code to UK NLS ships operating in polar waters (the Antarctic Area and Arctic waters). The Polar Code came into force on 1st January 2017. Part 5 of the Regulations makes provision in relation to powers of inspection and detention of ships, and in relation to offences and penalties. Information supporting these Regulations may be published in a Merchant Shipping Notice. Merchant Shipping Notices are published by the Maritime and Coastguard Agency. Copies may be obtained from https://www.gov.uk/government/organisations/maritime-and-coastguard-agency, by e-mail from mnotices@ecgroup.co.uk with ‘Subscribe’ in the subject heading, or from M-Notices Subscriptions, PO Box 362, Europa Park, Grays, Essex RM17 9AY; Tel: 01375 484548; Fax: 01375 484556. The MARPOL Convention (including its Protocols, Annexes and amendments), the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STWC), the the International Convention for the Safety of Life at Sea (SOLAS), the BCH Code, IBC Code, IGC Code, Polar Code, and the OSV Guidelines can be obtained from the International Maritime Organization (“IMO”) at IMO Publishing, 4 Albert Embankment, London SE1 7SR, www.imo.org/publications; email: sales@imo.org; telephone: 0207 735 7611. The RO Code and resolutions of the IMO can be obtained from the IMO Library at the same address as IMO Publishing and from www.imo.org/en/MediaCentre/Pages/Default.aspx; email: media@imo.org; telephone: 020 7587 3134. Except where otherwise stated copies of the Command Papers referred to in this instrument are not available electronically but are available for inspection free of charge but by appointment at the Parliamentary Archives, Houses of Parliament, London, SW1A 0PW; email: archives@parliament.uk; telephone: 0207 219 3074. A copy of the UNCLOS Convention may be obtained from http://treaties.fco.gov.uk/docs/pdf/1999/TS0081.pdf. or from the United Nations at the Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, Room DC2-0450, United Nations, New York, NY 10017: telephone: 212 963 3950: email doalos@un.org, and at http://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf. Future amendments to the Convention and other documents to which the ambulatory reference provision applies may be obtained from IMO Publishing or, where such amendments are made by a resolution of the IMO, from the IMO Library. An amendment will be published in advance of its in force date by means of a Parliamentary Statement to both Houses of Parliament and by way of a Merchant Shipping Notice. A full Impact Assessment has not been produced for this instrument as it is not expected to have significant impact on the public or voluntary sectors and only minimal impact on the private sector is foreseen. A Regulatory Triage Assessment of the effect that this instrument will have on the costs of business and the voluntary sector is published with the Explanatory Memorandum alongside these Regulations at www.legislation.gov.uk.

Read the full note and every offence in this instrument

How this became law

This instrument became law without a debate or a vote. Under the negative procedure it took effect unless a motion to stop it succeeded, and none was tabled.

Neither House could have amended it. A statutory instrument is put to each House as a whole thing, to be approved or not; the Houses can reject an instrument or record their regret, but they cannot change a word of it. That is the constitutional position for every offence on this site.

The full procedural history →

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 0.88.

Basis
the provision says the conduct “is an offence”; the provision says an offence is committed “if” something happens
Confidence
0.88 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