Restrictions on possession and use of detecting devices

Q: Is article 29(3) of Historic Monuments and Archaeological Objects (Northern Ireland) Order 1995 a strict liability offence?

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.

article 29(3) of Historic Monuments and Archaeological Objects (Northern Ireland) Order 1995

Status not determined
Strict liability
Either way
Housing, planning, heritage and land

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

3 If a person without the written consent of the Department removes any archaeological object which he has discovered by the use of a detecting device in a protected place he shall be guilty of an offence and liable on summary conviction to a fine not exceeding the statutory maximum or on conviction on indictment to a fine.

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 This is the text as originally made; later amendments are not shown here.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: acting without the licence or authorisation required
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 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.

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; qualified by absence of consent (an element).

What would breach article 29(3)?

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.

Starting the activity before the licence is granted, rather than on the day it takes effect under the Historic Monuments and Archaeological Objects (Northern Ireland) Order 1995.
Carrying on after a licence has expired, been surrendered or been suspended.
Relying on somebody else's authorisation, where the provision requires the person doing the act to hold one.

Penalty

Mode of trial: Either way — magistrates’ court or Crown Court
Maximum fine: £2,500
Standard scale: Level 4
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.

Environmental offences: definitive guideline Magistrates' courts and the Crown Court in England and Wales · in force from 1 July 2014
Covers unauthorised or harmful deposit, treatment or disposal of waste, illegal discharges to air, land and water, and the equivalent offences committed by organisations. It is the guideline that introduced turnover bands for corporate fines, so the size of the defendant company is a starting point rather than a mitigating detail.
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: 28 June 1995
In force from: 29 August 1995
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 Order provides for the protection of historic monuments and archaeological objects.

Read the full note and every offence in this instrument

Other offences in the same instrument

SCHEDULE 1SCHEDULE 1
Public access to monuments under ownership or guardianship of Departmentarticle 20(6)
Restrictions on possession and use of detecting devicesarticle 29(1)
Restrictions on possession and use of detecting devicesarticle 29(5)
Damaging certain historic monumentsarticle 30(1)
Supplementary provisions with respect to powers of entryarticle 33(8)
Power to require information as to estates in landarticle 39(2)
Power to require information as to estates in landarticle 39(3)
Control of works affecting scheduled monumentsarticle 4(1)
Control of works affecting scheduled monumentsarticle 4(6)
Restriction on searching for archaeological objects, etcarticle 41(1)
Reporting of archaeological objects foundarticle 42(7)

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.
Historic Monuments and Archaeological Objects (Northern Ireland) Order 1995 Every offence this instrument creates, and its explanatory note
Housing, planning, heritage and landOther offences on the same subject
Offences created in 1995