UK Offence Report

Enforcement of Regulation 1935/2004

regulation 4 of The Materials and Articles in Contact with Food Regulations (Northern Ireland) 2007 (revoked)

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 Subject to the provisions of Article 27 (transitional arrangements), any person who contravenes any of the following provisions of Regulation 1935/2004 is guilty of an offence —

a Article 3 (general requirements);

b Article 4 (special requirements for active and intelligent materials and articles);

c Article 11(4) and (5) (provisions relating to Community authorisation);

d Article 15(1), (2), (3), (4), (7) and (8) (labelling);

e Article 16(1) (declaration of compliance);

f Article 17(2) (traceability).

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 This is the text as originally made; later amendments are not shown here.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
contravening a requirement of the instrument
Fault element
Strict liability
Burden of proof
Legal burden on the defendant

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 gives a defence the defendant must prove, on the balance of probabilities. A legal burden of that kind can be read down to a merely evidential one under section 3 of the Human Rights Act 1998 where placing it on the defendant would be disproportionate (R v Lambert [2001] UKHL 37; Sheldrake v DPP [2004] UKHL 43).

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

The defence, as drafted

4). 3 A person satisfies the requirements of this paragraph if he proves — a that the commission of the offence was due to an act or default of some other person who was not under his control, or to reliance on information supplied by such a person; b that either — i he carried out all such checks of the material or article in que

What would breach regulation 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.

  1. On these words an offence is committed where a person contravenes any of the following provisions of Regulation 1935/2004.
  2. Doing the thing the provision prohibits under the Materials and Articles in Contact with Food Regulations (Northern Ireland) 2007, whatever the reason for doing it.
  3. Where the requirement is a positive duty, letting the time for performing it pass without performing it.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
£5,000
Standard scale
Level 5
Maximum prison (summary)
Not determined
Maximum prison (on indictment)
2 years

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.

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
8 October 2007
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 Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations revoke the Materials and Articles in Contact with Food Regulations (Northern Ireland) S.R. 2005 No.210) (“the 2005 Regulations”) and re-enact or re–enact with amendments provisions contained in those Regulations. These Regulations provide for the enforcement of Regulation (EC) No.1935/2004 of the European Parliament and of the Council on materials and articles intended to come into contact with food and repealing Directives 80/590/EEC and 89/109/EEC (OJ No. L338, 13.11.2004, p.4) (“Regulation 1935/2004”). The Regulations also provide for the enforcement of Commission Regulation (EC) No. 2023/2006 on good manufacturing practice for materials and articles intended to come into contact with food (OJ No. L384, 29.12.2006, p.75 (“Regulation 2023/2006”), and implement Commission Directive 2007/42/EC relating to materials and articles made of regenerated cellulose film intended to come into contact with foodstuffs (OJ No. L172, 30.6.2007, p.71) (“Directive 2007/42”). This Directive repealed and consolidated Commission Directive 93/10/EEC (OJ No. L93, 17.4.1993, p.27) as last amended by Commission Directive 2004/14/EC (OJ No. L27, 30.1.2004, p.48). These Regulations provide that references to a certain EC instrument or specified parts of certain EC instruments are to be construed as references to the instrument or specified part of it as it may be amended from time to time (regulation 2(4)). These Regulations do not apply to materials or articles outside the scope of Regulation 1935/2004 (regulation 3). The materials identified in that Regulation as being outside its scope are materials and articles supplied as antiques, covering or coating materials forming part of the food and which may be consumed with it, and fixed public or private water supply equipment. Part 2 of these Regulations contains provisions which make it an offence to contravene certain requirements of Regulation 1935/2004, (regulation 4), and of Regulation 2023/2006 (regulation 5). Regulation 1935/2004 is the principal framework Regulation on materials and articles in contact with food.. This Part also provides for designation of the competent authorities for the various purposes identified in Regulations 1935/2004 and 2023/2006 (regulations 6 and 7). Part 3 contains regulations which re-enact, without substantive amendments, the provisions of the 2005 Regulations relating to vinyl chloride (regulations 8 and 9). Part 4 contains regulations that re-enact provisions of the 2005 Regulations relating to regenerated cellulose film (“RCF”), with minor amendments to implement Directive 2007/42 (regulations 10 &11). In particular regulation 10 of these Regulations — a controls what substances may be used in the manufacture of RCF, which may vary according to whether or not it is coated with plastics (paragraph (3)); b regulates what substances may be used to manufacture plastic coatings for RCF, and under what conditions (paragraph (4)); c creates a conditional derogation from paragraph (3) in respect of substances used as colourants or adhesives in the manufacture of non-plastic coated RCF (paragraph (5)); d creates offences in relation to the sale, import or business use of non-compliant RCF (paragraphs (6) & (7)); and e creates a conditional requirement for RCF, when marketed prior to the retail stage, to be accompanied by a declaration of legislative compliance (paragraph (8)). Regulation 11 applies to plastic coated RCF the existing controls (derived from Commission Directive 2002/72/EC) on migration of constituents of plastic materials and articles into food, in particular by — a specifying overall migration limits for plastic coated RCF (paragraphs (1) & (2)); b applying to plastic coated RCF the specific migration limits applicable to certain substances used in the manufacture of plastic materials and articles (paragraphs (3) & (4)); and c applying the prescribed methods and procedures for checking compliance with migration limits (paragraphs (5) & (6)). Regulation 12 contains savings and transitional provisions which — a preserve the defences available under the Materials and Articles in Contact with Food Regulations (Northern Ireland) 1987 for any RCF manufactured before 8th June 1994 that may still be in circulation; and b create a defence in relation to RCF manufactured in or imported into the European Community before 29th January 2006. Part 5 of these Regulations contains general administrative and enforcement provisions which— a penalise contravention of these Regulations or obstruction of those enforcing them (regulation 13); b designate enforcement authorities for various functions under the Regulations (regulation 14); c provide for the prosecution of a person who causes the commission of an offence by another person, whether or not proceedings are taken against the original offender (regulation 15); d specify a time limit for commencing a prosecution (regulation 16); e provide for a defence of due diligence to an offence under these Regulations (regulation 17); f specify the procedure to be followed when sending a sample for analysis (regulation 18); g make provision for a reference sample to be analysed by the Laboratory of the Government Chemist (regulation 19); and h apply certain provisions of the Food Safety (Northern Ireland) Order 1991 (regulation 20). In Part 5 these Regulations also — a make amendments to the Plastic Materials and Articles in Contact with Food (No.2) Regulations (Northern Ireland) 2006 (S.R. 2006 No.326); (regulation 21) and b revoke the Materials and Articles in Contact with Food Regulations (Northern Ireland) 2005 and subsequent amending legislation (regulation 22).

Read the full note and every offence in this instrument

Other offences in the same instrument

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