UK Offence Report

2 Any failure by a master to comply with a requirement under regulation 38(6)(b) (inspection of ships) is an…

regulation 44(2) of The Merchant Shipping (Control and Management of Ships’ Ballast Water and Sediments) Regulations 2022

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 38(6)(b) (inspection of ships) 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 This is the text as originally made; later amendments are not shown here.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 they 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 5(1) (requirement

What would breach regulation 44(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 (Control and Management of Ships’ Ballast Water and Sediments) Regulations 2022.

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
3 July 2022
In force from
29 July 2022
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 International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004 (“the Convention”). The Convention was adopted on 13th February 2004 and came into force internationally on 8th September 2017. The United Kingdom acceded to the Convention on 26th May 2022. These Regulations implement all amendments to the Convention as at the date of this statutory instrument. The Regulations apply to United Kingdom ships wherever they may be and any other ship whilst it is operating in United Kingdom waters or controlled waters (regulation 4). The Regulations are disapplied in relation to certain ships including those which are not designed or constructed to carry ballast water, ships which operate only in waters under the jurisdiction of a single Contracting State or only in waters under the jurisdiction of a single Contracting State and on the high seas and ships which carry permanent ballast water in sealed tanks not subject to discharge. Part 2 imposes a prohibition on discharging any ballast water or sediments from a ship unless they are subject to ballast water management (regulation 5). There are a number of exceptions (regulation 6) and the Secretary of State may grant exemptions (regulation 7) and, for certain ships, approve equivalents (regulation 8). Part 3 requires ships to have an approved ballast water management plan (regulation 9) and to carry a ballast water record book to record operations concerning ballast water (regulation 10). Regulation 11 imposes requirements on where ballast water exchange may take place and regulation 12 sets the standard for the exchange of ballast water. Regulation 13 sets the standard for the treatment of ballast water and sediments. Part 4 requires the owner and operator of a shipyard within a harbour to provide sediment reception facilities (regulation 14). Part 5 of the Regulations contains a power to designate nominated bodies to carry out type approval of ballast water management systems (regulation 15). Regulation 16 imposes a requirement on United Kingdom ships to have a valid BWMS (ballast water management system) Type Approval Certificate when the BWMS is installed. The procedure for applying for type approval is contained in regulation 17, whilst the requirements that must be fulfilled for type approval to be granted are in regulation 18. Regulation 19 enables nominated bodies to suspend or withdraw type approval in certain circumstances. Part 5 also makes provision for the Secretary of State to prohibit the use of systems which use active substances and the substances themselves (regulation 20). Regulation 21 allows the Secretary of State to approve the testing of prototype ballast water management systems. Part 6 of the Regulations provides that a UK ship must not proceed to sea or, if it is already at sea, remain at sea without a valid IBWM Certificate (International Ballast Water Management Certificate) (regulation 23). There is a similar requirement for non-UK ships (regulation 24). United Kingdom ships must be subjected to various surveys (regulation 25) and if they satisfy the requirements of these surveys then a Certifying Authority must issue them with an IBWM Certificate or endorse an existing IBWM Certificate (regulations 26 and 27). Part 6 also provides that an additional survey will be required following a change, replacement or significant repair (regulation 32) and that the ship must be maintained to conform with the provisions of the Regulations following a survey (regulation 31). Part 7 of the Regulations makes provision in relation to the powers of inspection and detention of ships, and in relation to offences and penalties. Part 8 amends the Merchant Shipping (Fees) Regulations 2018 (S.I. 2018/1104) to allow fees to be charged for various functions carried out by the Maritime and Coastguard Agency (“MCA”) under these Regulations. The Secretary of State must review the operation and effect of these Regulations and publish a report within five years after they come into force and within every five years thereafter (regulation 51). Following such a review it will fall to the Secretary of State to consider whether the Regulations should remain as they are, or be revoked or amended. A further instrument would be needed to revoke the Regulations or to amend them. Merchant Shipping Notices are published by the MCA and a copy of MSN 1908 (M+F) can be obtained free of charge at www.gov.uk or in hard copy from the MCA of Spring Place, 105 Commercial Road, Southampton SO15 1EG. Guidance supporting these Regulations has been published in a Marine Guidance Note (MGN 675 (M+F)). Copies can be obtained free of charge at www.gov.uk or in hard copy from the address given above. The Convention can be obtained from the International Maritime Organization (“the IMO”) at IMO Publishing, 4 Albert Embankment, London SE1 7SR, www.imo.org/publications; email: sales@imo.org; telephone: 0207 735 7611. The text of IMO Regulations can be obtained in hard copy from the IMO Library at the same address as IMO Publishing. A full impact assessment of the effect that this instrument will have on the costs of business, the voluntary sector and the public sector is published with the Explanatory Memorandum alongside this instrument on 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