UK Offence Report

Offences and penalties

regulation 11(3) of The Merchant Shipping and Fishing Vessels (Entry into Enclosed Spaces) 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

3 A shipowner or an employer who fails to comply with any of the requirements of regulation

9 or 10(3) is guilty of 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 This is the text as originally made; later amendments are not shown here.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
an employer
Conduct
failing to comply with a notice or direction
Fault element
Mixed — some elements strict, some not
Burden of proof
Legal burden on the defendant

The prosecution must prove the conduct, and - for those elements the provision qualifies - the state of mind it names. The remaining elements carry no fault requirement, so they are strict.

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: the offence itself carries no fault word, but a duty it criminalises by cross-reference uses reasonably practicable; which element that governs was not determined.

The defence, as drafted

imprisonment for a term not exceeding two years or both. 6 It is a defence for a person charged with an offence under these Regulations that the person took all reasonable steps to avoid commission of the offence. 7 Where an offence under these Regulations is committed, or would have been committed but for the operation of paragraph

What would breach regulation 11(3)?

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 an employer fails to comply with any of the requirements of regulation 9 or 10(3).
  2. Being served with a notice under the Merchant Shipping and Fishing Vessels (Entry into Enclosed Spaces) Regulations 2022 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
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
8 February 2022
In force from
14 May 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 revoke the Merchant Shipping (Entry into Dangerous Spaces) Regulations 1988 (S.I. 1988/1638); re-enact certain provisions of those Regulations; give effect to the new regulation 7 of Chapter XI-1 of the International Convention for the Safety of Life at Sea 1974 (“SOLAS”); and extend the requirements of that regulation and regulation 19 of Chapter III of SOLAS to ships other than SOLAS ships. The Regulations require shipowners, masters, employers of seafarers and other persons to comply with obligations designed to avoid deaths or injuries in enclosed spaces. The Regulations provide for the granting of exemptions (regulation 10). The Regulations also provide for contravention of the various requirements to be offences and subject to criminal penalties (regulation 11). In cases of non-compliance a ship may be detained (regulation 12). The Merchant Shipping (Fees) Regulations 2018 (S.I. 2018/1104) are amended to substitute a reference to these Regulations for the existing reference to the Merchant Shipping (Entry into Dangerous Spaces) Regulations 1988 (regulation 13). 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 after that (regulation 14). Following a review, it will fall to the Secretary of State to consider whether these Regulations should remain as they are, or be revoked or be amended. A further instrument would be needed to revoke or amend these Regulations. SOLAS and its Protocol of 1988 may be obtained in copy from the International Maritime Organization (IMO), 4 Albert Embankment, London SE1 7SR and both are available on the Foreign, Commonwealth and Development Office (FCDO) treaties database (https://treaties.fco.gov.uk/awweb/pdfopener?md=1&did=79786). The text of the IMO Resolutions amending the Convention and Protocol may be obtained from the IMO or on the FCDO treaties database (https://treaties.fco.gov.uk/awweb/pdfopener?md=1&did=68013). The Maritime Labour Convention (MLC) is available on the website of the International Labour Organisation (ILO) at www.ilo.org/global/standards/maritime-labour-convention/lang--en/index.htm and on the FCDO treaties database (http://foto.archivalware.co.uk/data/Library2/pdf/2016-TS0037.pdf). Copies of the MLC may be obtained as a priced publication from www.tsoshop.co.uk, or by post from TSO Customer Services, 18 Central Avenue, St. Andrew’s Business Park, Norwich NR7 0HR, tel: +44 (0) 333 202 5070 or inspected free of charge at the Maritime and Coastguard Agency (MCA), Spring Place, 105 Commercial Road, Southampton SO15 1EG. Reference to the MLC in this instrument is ambulatory (regulation 4). Future amendments to the MLC may be obtained in copy from the ILO and, after coming into force in the United Kingdom, found on the FCDO treaties database ( https://treaties.fco.gov.uk/responsive/app/consolidatedSearch/). Until such publication is made on the FCDO treaties database, an amendment will be available from the MCA and on https://www.gov.uk. An amendment will be publicised in advance of its in-force date by means of a Parliamentary Statement to both Houses of Parliament and by way of a Marine Guidance Note, which will be available in copy from the MCA and on https://www.gov.uk. A full impact assessment has not been provided for this instrument as no, or no significant, impact on the private, voluntary or public sector is foreseen. An Explanatory Memorandum is published 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 →

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 0.92.

Basis
the provision says a person is “guilty of an offence”
Confidence
0.92 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