Power to require information for enforcement purposes

Q: Is article 261(4) of The Water and Sewerage Services (Northern Ireland) Order 2006 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 261(4) of The Water and Sewerage Services (Northern Ireland) Order 2006

Status not determined
Strict liability
Summary only
Energy, communications, water and utilities

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 A person who, without reasonable excuse, fails to do anything required of him by
a notice under paragraph (2) shall be guilty of an offence and liable, on summary conviction, to
a fine not exceeding level
5 on the standard scale.

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 This is the text as originally made; later amendments are not shown here.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

4 A person who, without reasonable excuse, fails to do anything required of him by a notice under paragraph (2) shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 5 on the standard scale.

What would breach article 261(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.

On these words an offence is committed where a person fails to do anything required of him by a notice under paragraph (2).
Not doing what the provision requires under the Water and Sewerage Services (Northern Ireland) Order 2006, 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: £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.

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.
Health and safety offences, corporate manslaughter and food safety and hygiene offences: definitive guideline Magistrates' courts and the Crown Court in England and Wales · in force from 1 February 2016
Covers breaches of duty under the Health and Safety at Work etc. Act 1974 and the regulations made under it, and food safety and food hygiene offences. Sentencing turns on culpability and on the seriousness and likelihood of harm risked, not only on the harm that happened.
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: 14 December 2006
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 Parliament said

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

Water and Sewerage Services (Northern Ireland) Order 2006 Lords · 11 December 2006 · Lord Trimble
My Lords, I thank the noble Lord for giving us that information. On regulation generally, some of what the Minister has said about the powers of the regulator give a little comfort. There is still real concern about the regulation. Again, I would like the Minister to comment on that in his winding-up speech. My understanding is that the regulator’s powers are derived solely from the licence, which the Government…
Energy Bill Commons · 3 June 2013
(c) in relation to a site in Northern Ireland, a water undertaker (within the meaning of the Water and Sewerage Services) (Northern Ireland) Order 2006 (S.I. 2006/3336 (N.I. 21)).
Digital Markets, Competition and Consumers Bill (Fourteenth sitting) Commons · 11 July 2023 · Kevin Hollinrake
I do not have anything further to add. Perhaps we can have a discussion about this offline. Amendment 83 agreed to. Clause 283, as amended, ordered to stand part of the Bill. Clause 284 Other definitions Amendments made: 84, in clause 284, page 189, line 34, leave out “(the gas code)” and insert “, or by section 12(1) or (2) of the Energy Act (Northern Ireland) 2011 (2011 c. 6),”. The provisions of the Gas Act 1986…
Digital Markets, Competition and Consumers Bill Commons · 20 November 2023 · Jim Shannon
It is a pleasure to follow the hon. Member for Brighton, Pavilion (Caroline Lucas). She is, if I may say so, the conscience of the Chamber in relation to net zero and environmental issues. She always gives us a helpful reminder of the importance of those issues for all of us across this United Kingdom of Great Britain and Northern Ireland. It has been incredibly encouraging to hear the comments made thus far by all…

Other offences in the same instrument

SCHEDULE 1SCHEDULE 1
SCHEDULE 10SCHEDULE 10
SCHEDULE 4SCHEDULE 4
SCHEDULE 4SCHEDULE 4
SCHEDULE 4SCHEDULE 4
General duties of undertakers with respect to disconnectionsarticle 102(2)
General duties of undertakers with respect to disconnectionsarticle 102(3)
Prohibition of use of limiting devicesarticle 103(1)
Duties of undertakers as respects constancy and pressurearticle 105(10)
Subject to paragraph (3), where a water undertaker supplies water by means of pipes to any premises and that…article 110(1)
For the purposes of section 20(2) of the Interpretation Act (Northern Ireland) 1954 (c. 33) and any other…article 110(2)
Waste from water sourcesarticle 111(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 Water and Sewerage Services (Northern Ireland) Order 2006 Every offence this instrument creates, and its explanatory note
Energy, communications, water and utilitiesOther offences on the same subject
Offences created in 2006