Bringing successful prosecutions as a harbour authority
Tuesday, 22nd March 2016
The spring and summer months bring challenges to harbour authorities in many forms, not least the increase in leisure activities taking place. This increase in activity may lead to more frequent breaches of the byelaws and directions a harbour authority has in place. Thereby affecting safety of navigation.
The Port Marine Safety Code ("PMSC") applies to all Statutory Harbour Authorities in the UK. It does not in itself create new legal obligations. However, failure to comply with the PMSC, can make it difficult to demonstrate ''best practice'' and lead to prosecutions being brought by the Health and Safety Executive ("HSE") or the Maritime and Coastguard Agency ("MCA") under their existing legal powers.
The PMSC Guide to Good Practice on Port Marine Operations (March 2015) requires that all legislation, including byelaws and directions, should be reviewed on a regular basis, preferably annually, to ensure that it remains fit for purpose in changing circumstances. In addition, it states at paragraph 1.21 that:
"Byelaws and directions adopted in order to manage identified marine risks must be backed by an appropriate policy on enforcement; and that each authority should have a clear policy on prosecution, which is consistent with the safety assessment on which its directions are based."
Harbour authorities should then bring prosecutions in line with their enforcement policy.
Most harbour authorities have very good safety records in their harbours and virtually all, take safety of navigation very seriously. However, not all harbour authorities are experienced at bringing prosecutions. This may simply be because there have been no recent incidents which have been serious enough to meet the ''pubic interest'' test for bringing a prosecution. Lack of experience can make the prospect of bringing a prosecution daunting. However, it need not be. The process is relatively simple as long as all of the relevant information is correctly collected at the time of the incident.
Attending a short training course, specifically tailored to the individual harbour authority's statutory harbour powers and existing byelaws and directions, can be a very good way of increasing the confidence of harbour staff who will act as enforcement agents. It is also likely to increase the chances of bringing a successful prosecution as harbour staff will have an increased understanding of the information they are required to collect at the time of an incident and how to conduct interviews under caution.
Ashfords provide a full enforcement and regulatory offering to harbour authorities, including providing enforcement training; carrying out byelaw (and statutory harbour power) reviews and updates, assisting with obtaining powers of general or harbour direction and the subsequent exercise of these powers, dealing with the regulatory aftermath of any incidents (MCA, HSE, Environmental and Personal Injury) and we can prosecute at reasonable cost with a decent prospect of costs recovery.
This article has been written by Lara Moore and Jeremy Asher.