UK Offence Report

1 An employer of a cross-border worker who fails to comply with regulations 8(3) or 9 is guilty of an offence.

regulation 11(1) of The Cross-border Railway Services (Working Time) Regulations (Northern Ireland) 2008

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

1 An employer of

a cross-border worker who fails to comply with regulations 8(3) or

9 is guilty of an offence.

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 This is the text as originally made; later amendments are not shown here.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

What would breach regulation 11(1)?

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 fails to comply with regulations 8(3) or 9.
  2. Not doing what the provision requires under the Cross-border Railway Services (Working Time) Regulations (Northern Ireland) 2008, by the time it requires it to be done.
  3. Doing it, but not in the manner or to the standard the instrument specifies.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
£5,000
Standard scale
Level 5
Maximum prison (summary)
3 months
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
23 July 2008
In force from
1 October 2008
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 implement the provisions of Council Directive 2005/47/EC (OJ No. L195, 27.7.05, p. 15) of 18th July 2005 on the Agreement between the Community of European Railways (CER) and the European Transport Workers' Federation (ETF) on certain aspects of the working conditions of mobile workers engaged in interoperable cross-border services in the railway sector. The Regulations apply to workers whose daily shift includes more than one hour on train services going to the Republic of Ireland that require at least two safety certificates. These workers are referred to as cross-border workers in the Regulations. Regulations 3 to 7 give cross-border workers entitlements to rests and breaks from work. Regulation 8 obliges the employer to take reasonable steps to ensure the requirements relating to driving time set out in that regulation are complied with. Regulation 9 requires the employer to keep records and provide copies of the records. Regulation 10 to 16 and Schedule 2 contain provisions in relation to enforcement. An employer’s obligations under regulations 8 and 9 are enforceable by the Health and Safety Executive for Northern Ireland and an employer’s failure to comply with an obligation under either regulation is an offence. Regulation 17 makes provision in respect of complaints to an industrial tribunal. Regulation 18 prevents contracting out of the provisions of the Regulations, subject to exceptions set out in regulation 18. Regulation 19 and Schedule 3 amend the Working Time Regulations (Northern Ireland) 1998 (S.R. 1998/386, as subsequently amended, including by S.R. 2003/330, which is relevant to these Regulations). The Working Time Regulations (Northern Ireland) 1998 implement Directive 2003/88/EC (O.J. No. L299, 18.11.03, p. 9) of the European Parliament and of the Council of 4th November 2003 concerning certain aspects of the organisation of working time. Article 14 of that Directive provides that where other Community instruments contain more specific requirements relating to the organisation of working time for certain occupations or occupational activities the Directive does not apply. Council Directive 2005/47/EC contains more specific requirements than some of the requirements of Directive 2003/88/EC. Consistent with Article 14 of Directive 2003/88/EC, regulation 19 and paragraph 4 of Schedule 3 amend the Working Time Regulations (Northern Ireland) 1998 so that the provisions on compensatory rest do not apply to cross-border workers. Regulation 19 and Schedule 3 also amend the Industrial Tribunals (Northern Ireland) Order 1996, the Employment Rights (Northern Ireland) Order 1996 and the Employment (Northern Ireland) Order 2002 so that provisions of those Orders that refer to the Working Time Regulations (Northern Ireland) 1998 also refer to these Regulations.

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.

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