Enforcement

article 5B of The Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981

• In force
• Strict liability
• Either way
• Corporate, financial services, company law, employment, charity, electoral and tax

The instrument creating this offence has not been revoked so far as the data shows.

What the provision says

5B Any person who, without reasonable excuse, fails to comply with a prohibition order shall be guilty of an offence and liable a on conviction on indictment, to a fine; b on summary conviction, to a fine not exceeding the statutory maximum.

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 This is the text as originally made; later amendments are not shown here.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 person

Conduct

failing to comply with a notice or direction

Fault element

Strict liability

Burden of proof

An element of the offence, for the prosecution to prove

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 person 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.

“Without reasonable excuse” here is an element of the offence rather than a defence, so its absence is for the prosecution to prove (R v Charles [2009] EWCA Crim 1570).

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision; qualified by reasonable excuse (an element; prosecution disproves once raised).

The defence, as drafted

5B Any person who, without reasonable excuse, fails to comply with a prohibition order shall be guilty of an offence and liable a on conviction on indictment, to a fine; b on summary conviction, to a fine not exceeding the statutory maximum.

What would breach article 5B?

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 a person fails to comply with a prohibition order.
2. Being served with a notice under the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981 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

£5,000

Standard scale

Level 5

Maximum prison (summary)

Not determined

in Northern Ireland a reference to a level is construed as referring to the standard scale as it currently stands (Fines and Penalties (NI) Order 1984 art.5(3)), not as it stood when the instrument was made.

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.

• Sentencing organisations: fines and the means of a corporate defendant All courts in England and Wales

  How a fine on a company is arrived at from its turnover. Relevant far beyond the guidelines that state it, because a very large share of the offences in this corpus can only be committed by an organisation.

• Fraud, bribery and money laundering offences: definitive guideline Magistrates' courts and the Crown Court in England and Wales · in force from 1 October 2014

  Covers fraud, false accounting, bribery and money laundering, including offences committed by organisations.

• Imposition of community and custodial sentences: definitive guideline All courts in England and Wales

  When a community order or custody is justified at all, and the presumption against short custodial sentences.

• Reduction in sentence for a guilty plea: definitive guideline All courts in England and Wales · in force from 1 June 2017

  The sliding scale of credit for pleading guilty, from one third at the first stage of proceedings downwards.

• General guideline: overarching principles All courts in England and Wales · in force from 1 October 2019

  The guideline a court uses when there is no offence-specific guideline, which is the position for the overwhelming majority of offences created by statutory instrument. It sets out how culpability and harm are assessed from first principles.

• Totality: definitive guideline All courts in England and Wales

  How to sentence more than one offence at once so that the total is just and proportionate - frequently in point here, because regulatory prosecutions commonly charge several breaches of the same instrument.

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

In force

Made

10 June 1981

In force from

Not determined

Extent

N.I.

How this was established: read from the revised (currently in force) text.

What Parliament said

Mentions of this instrument in Hansard. Parliamentary material is reused under the Open Parliament Licence v3.0.

• Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981 Lords · 3 June 1981 · The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Elton)

  My Lords, I beg to move that the draft Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981, which was laid before this House on 12th May 1981, be approved. This draft order deals with various matters within the field of employment in Northern Ireland. The main provisions are contained in Parts II and III. Part II deals with the control, through licensing, of private employment agencies and…

• Broadcasting Bill Lords · 26 July 1990

  Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981 (S.I. 1981/839 (N.I.20)). In Article 11(4) (interpretation), for sub-paragraphs (c) and (d) substitute "or (c) to providing a programme service (within the meaning of the Broadcasting Act 1990).".

• Deregulation And Contracting Out Bill Lords · 4 July 1994 · Lord Henley

  I can assure the noble Lord, Lord Wedderburn, that it was not my carnal desires that led me to intervene. Rather it was the look on the face of his noble friend, the Opposition Chief Whip, that encouraged me to try to bring the debate to a head. The licensing of employment agencies is a typical example of unnecessary regulation. It does little to protect people who use agency services. It is a very bureaucratic…

• Immigration Bill Lords · 9 March 2016

  29: Schedule 2, page 74, line 40, at end insert— “Employment Agencies Act 1973 (c. 35)3A (1) Section 9 of the Employment Agencies Act 1973 (inspection) is amended as follows. (2) In subsection (4)— (a) in paragraph (a), for the words before sub-paragraph (i) substitute “No information to which this subsection applies shall be disclosed except—”;(b) at the end of paragraph (a) insert “; or“(vii) to an officer acting…

Other offences in the same instrument

• General regulationsarticle 6
• General regulationsarticle 6(3)
• Restriction on charging persons seeking employmentarticle 7(2)
• Powers of officersarticle 7B(11)
• Powers of officersarticle 7B(9)
• Fraudulent applications and entriesarticle 9
• Fraudulent applications and entriesarticle 9(2)
• For the purposes of paragraph (2) a relevant offence is an offence under Article . . . , 7B(11) or 9(2) for…article 9A(1)

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

• This provision on legislation.gov.uk The authoritative text. Check it before relying on anything here.
• The Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981 Every offence this instrument creates, and its explanatory note
• Corporate, financial services, company law, employment, charity, electoral and taxOther offences on the same subject
• Offences created in 1981