Authorisation of delay in notifying arrest, etc., and drug trafficking offences to be serious arrestable…

article 37(3)(b) of The Criminal Justice (Confiscation) (Northern Ireland) Order 1990

• Status not determined
• Strict liability
• Either way
• Corporate, financial services, company law, employment, charity, electoral and tax

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

b after paragraph (5) there shall be inserted— 5A An officer may also authorise delay where the serious arrestable offence is an offence to which the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 applies (offences in respect of which confiscation orders under that Order may be made) and the officer has reasonable grounds for believing—

a in the case of an offence other than

a drug trafficking offence, that the detained person has benefited from the offence and that the recovery of the value of the property obtained by that person from or in connection with the offence or of the pecuniary advantage derived by him from or in connection with it will be hindered by telling the named person of the arrest; and

b in the case of

a drug trafficking offence, that the detained person has benefited from drug trafficking and that the recovery of the value of that person’s proceeds of drug trafficking will be hindered by telling the named person of the arrest. .

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 This is the text as originally made; later amendments are not shown here.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

Conduct

breaching the provision

Fault element

Strict liability

Burden of proof

No statutory defence — prosecution proves everything

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 an officer 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.

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

What would breach article 37(3)(b)?

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. Doing what the provision prohibits, or failing to do what it requires under the Criminal Justice (Confiscation) (Northern Ireland) Order 1990.

Penalty

Mode of trial

Either way — magistrates’ court or Crown Court

Maximum fine

£5,000

Maximum prison (summary)

Not determined

Maximum prison (on indictment)

6 months

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.

• 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

Status not determined

Made

19 December 1990

In force from

Not determined

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 Order) This Order- — the explanatory note published with the instrument, © Crown copyright.

a provides for courts to order the confiscation of assets of offenders convicted of highly profitable crimes; b provides for courts to order the confiscation of proceeds of drug trafficking; c provides for certain enhancements of court enforcement powers in order to secure payment of confiscation orders; and d makes further provision in connection with drug trafficking.

Read the full note and every offence in this instrument

Other offences in the same instrument

• Interpretationarticle 2(2)
• Assisting another to retain the benefit of drug traffickingarticle 29(1)
• Assisting another to retain the benefit of drug traffickingarticle 29(1)(b)
• Assisting another to retain the benefit of drug traffickingarticle 29(1)(b)(ii)
• Concealing or transferring proceeds of drug traffickingarticle 30(1)
• Concealing or transferring proceeds of drug traffickingarticle 30(2)
• Concealing or transferring proceeds of drug traffickingarticle 30(3)
• Where, in relation to an investigation into drug trafficking, an order under Article 31 has been made or has…article 35(1)
• In Article 57 (right to have someone informed when arrested)— a at the beginning of paragraph (5) there…article 37(3)
• In Article 59 (access to legal advice)— a at the beginning of paragraph (8) there shall be inserted “Subject…article 37(4)
• b after paragraph (8) there shall be inserted— 8A An officer may also authorise delay where the serious…article 37(4)(b)
• Assessing the proceeds of drug traffickingarticle 6(3)

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 0.62.

Basis

the provision says an offence is committed “if” something happens

Confidence

0.62 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 Criminal Justice (Confiscation) (Northern Ireland) Order 1990 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 1990