Joint Committee on Statutory Instruments Twelfth Report


APPENDIX 1

Memorandum from the Department for Transport, Local Government and the Regions

MERCHANT SHIPPING (DOMESTIC PASSENGER SHIPS) (SAFETY MANAGEMENT CODE) REGULATIONS 2001 (S.I. 2001/3209)

1. The Joint Committee on Statutory Instruments has asked for a memorandum on the following points:

"(1) Given that the preamble cites as enabling powers both section 2(2) of the European Communities Act 1972 and other powers, explain, as required by paragraphs 2.101(a) and 2.101A of Statutory Instrument Practice:

(a) what Community obligations are given effect by this instrument and by what provisions of it; and

(b) what provisions of the instrument do not implement Community obligations

and why this information was not included in the Explanatory Note.

(2) Regulation 10(2)(b) provides that a person who "in connection with any adult conducted in accordance with these Regulations" knowingly or recklessly furnishes false information shall be guilty of an offence. Explain the intended sense of this provision. Should "adult" have read "audit"?

(3) Regulation 10(3) provides that it is to be a defence for a person charged with an offence under the Regulations to show that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence. Explain the relevance of this defence in relation to an offence under regulation 10(2), and to a contravention of regulation 8(1) which is made an offence by regulation 10(1)."

2. (1) Regulation 11 of the Regulations amends the Merchant Shipping (ISM Code) (Ro-Ro Passenger Ferries) Regulations 1997 (S.I. 1997/3022) which were made under section 2(2) of the European Communities Act 1972, and in making those amendments the Regulations relate to the Community obligations contained in Council Regulation (EC) No. 3051/95 on the safety management of Ro-Ro passenger ferries. No other provisions of the Regulations implement Community obligations. It is regretted that this information was not included in the Explanatory Note.

3. (2) Regulation 10(2)(b) should refer to "audit" not "adult". It is regretted that this error, introduced at the printing stage, was not picked up.

4. (3) Regulation 10(2)(b) concerns knowingly or recklessly furnishing false information in connection with the audit of a safety management system. Regulation 10(1), as respects regulation 8(1), concerns the failure to designate a person responsible for monitoring the safe and efficient operation of the ship. If it were alleged that an offence under either of these provisions was being committed by a company through the actions of one of its officers, the defence provided by regulation 10(3) could be relevant to the question of the company's liability.

9 November 2001

Further Memorandum from the Department for Transport, Local Government and the Regions

MERCHANT SHIPPING (DOMESTIC PASSENGER SHIPS) (SAFETY MANAGEMENT CODE) REGULATIONS 2001 (S.I. 2001/3209)

1. The Joint Committee on Statutory Instruments has asked for a further memorandum on the following point:

"Elaborate upon the reasons given in paragraph (3) of the Department's memorandum that the defence provided in regulation 10(3) could be relevant to the question of the company's liability where the action in question was committed through the action of one of its officers. In particular, explain how the defence can ever be relevant in relation to an offence under regulation 10(2), given that the act in question must have been done "intentionally", "knowingly or recklessly" or "with intent to deceive"; and how the defence can be relevant where the company fails to discharge its obligation under regulation 8(1) to appoint a person who is to be responsible for the safe operation of the ship."

2. The application of the rules of attribution as respects the criminal liability of a company will be a question of interpretation in relation to the language, content and policy of the provision creating the criminal offence, in particular as to whether the state of mind with which the act was done should be attributed to the company (see Lord Hoffman in Meridian v Securities Commission, [1995] 2 AC 500). It was established in the case of Tesco v Natrass [1972] AC 153 that a defence of taking all reasonable precautions and exercising all due diligence could be applied to the action of a company, rather than to the action of the person within the company who committed the offence which is being attributed to the company.

3. It is consistent with the approach of the House of Lords in those cases that a defence such as that in regulation 10(3) could be applied to the actions of a company even though an employee of that company had the mens rea for an offence under regulation 10(2). The Trade Descriptions Act 1968(c.29), on which the case of Tesco v Natrass was based, makes similar provision to that in regulations 10(2) and (3) in that it creates in section 14(1) offences of knowingly or recklessly making a false statement to which section 24(1)(b) provides a defence of taking all reasonable precautions and exercising all due diligence.

4. Similarly, a defence under regulation 10(3) could be relevant to the actions of a company whose employee had failed to ensure that appointments are made in accordance with regulation 8(1).

26 November 2001


 
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