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Marine (Scotland) Act 2010

Offences

Section 94 - Offences: contravening a marine conservation order

149.Section 94 provides for the offence of contravening an MCO. A person who contravenes an MCO is liable to a fine not exceeding £50,000 on summary conviction or on conviction on indictment to a fine. In determining the amount of fine to be imposed on a person convicted of an offence, the court must in particular have regard to any financial benefit which has accrued or appears likely to accrue to the person in consequence of the offence. In this section, the term “contravene” includes failing to comply.

Section 95 - Offences relating to protected features of a Nature Conservation MPA

150.Section 95 provides for an offence of doing a prohibited act relating to protected features of a Nature Conservation MPA. “Prohibited” acts include intentionally or recklessly killing or injuring any animal in the MPA which is a protected feature of the MPA; picking, collecting, cutting, uprooting or destroying any plant in the MPA which is a protected feature of the site; taking anything from the MPA which is or forms part of the protected feature(s) of the MPA; and damaging or destroying any habitat or feature which is a protected feature of the MPA. However, doing one of these acts is only an offence where the act significantly hinders, or may significantly hinder, the achievement of the stated conservation objectives of the MPA.

Section 96 - Offences relating to marine historic assets

151.Section 96 deals with an offence relating to prohibited acts in connection with a Historic MPA. It is an offence intentionally or recklessly to do a prohibited act which significantly hinders (or which may significantly hinder) the stated preservation objectives for the protected area. A prohibited act includes works or activities which (or which are likely to) damage or interfere with a marine historic asset or have a significant impact on the protected area. It is also a prohibited act to remove, alter or disturb a marine historic asset within a Historic MPA.

Section 97 - Exception to offences under section 94, 95 or 96

152.Section 97 sets out exceptions to certain offences. Section 97(1) provides that a person is not guilty of the offence if the act was an exercise of the functions of a public authority in accordance with section 82(2), authorised by a public authority (but see note on section 85 which deals with dissapplication of this defence), or in accordance with a permit or authorisation issued by the Scottish Ministers under section 92(1) or (3). Section 97(1)(d) provides additional exceptions relating to the national interest. Section 97(2) provides a defence if the person can show that the act was done for the purpose of sea-fishing (or was an act done in connection with such an act) and the damage could not have reasonably been avoided. However, Scottish Ministers may by order (which requires Parliamentary approval by affirmative resolution) vary or remove the defence in section 97(2).

Section 98 - Prohibited act taken in an emergency

153.Section 98 sets out defences to certain offences. There are defences for where the act was necessary to save a life or to secure the safety of a vessel, aircraft or marine structure, and the person took steps within a reasonable time to inform the Scottish Ministers of the matters set out in subsection (2).

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