Power to remove trespassers on land

Q: Is article 3(4) of The Unauthorised Encampments (Northern Ireland) Order 2005 a strict liability offence?

The prosecution must prove the conduct, and - for those elements the provision qualifies (knowing that) - the state of mind it names. The remaining elements carry no fault requirement, so they are strict.

article 3(4) of The Unauthorised Encampments (Northern Ireland) Order 2005

Status not determined
Mixed — some elements strict, some not
Summary only
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

4 If a person knowing that a direction under paragraph (1) has been given which applies to him— a fails to leave the land as soon as reasonably practicable; or b having left again enters the land as a trespasser within the period of 3 months beginning with the day on which the direction was given, he commits an offence and is liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding level 4 on the standard scale, or both.

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 This is the text as originally made; later amendments are not shown here.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 do something the instrument requires
Fault element: Mixed — some elements strict, some not
Burden of proof: No statutory defence — prosecution proves everything

The prosecution must prove the conduct, and - for those elements the provision qualifies (knowing that) - the state of mind it names. The remaining elements carry no fault requirement, so they are strict.

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

Classifier’s reasoning: both a mens rea word and an objective standard appear in the offence itself.

What would breach article 3(4)?

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.

Not doing what the provision requires under the Unauthorised Encampments (Northern Ireland) Order 2005, by the time it requires it to be done.
Doing it, but not in the manner or to the standard the instrument specifies.

Penalty

Mode of trial: Summary only — tried in a magistrates’ court
Maximum fine: £2,500
Standard scale: Level 4
Maximum prison (summary): 3 months

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.
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 July 2005
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) — the explanatory note published with the instrument, © Crown copyright.

This Order makes provision for the removal by the police of trespassers on land in certain circumstances.

Read the full note and every offence in this instrument

What Parliament said

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

Unauthorised Encampments (Northern Ireland) Order 2005 Lords · 20 June 2005
Delegated Legislation Commons · 27 June 2005 · Mr. Deputy Speaker (Sir Michael Lord)
With the permission of the House, I shall put together motions 5 to 9. Motion made, and Question put forthwith, pursuant to Standing Order No. 118(6) (Standing Committees on Delegated Legislation), Northern Ireland That the draft Unauthorised Encampments (Northern Ireland) Order 2005, which was laid before this House on 21st February, in the last Session of Parliament, be approved. Climate Change Levy That the…

Other offences in the same instrument

A person commits an offence if he knows that a direction under Article 5(1) has been given which applies to…article 6(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 “commits an offence”; the provision states liability on summary conviction
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 Unauthorised Encampments (Northern Ireland) Order 2005 Every offence this instrument creates, and its explanatory note
Housing, planning, heritage and landOther offences on the same subject
Offences created in 2005