UK Offence Report

Prohibition of unlicensed provision of international services

regulation 43(1) of The Railways Infrastructure (Access, Management and Licensing of Railway Undertakings) Regulations (Northern Ireland) 2016

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 Where a person is a railway undertaking to which these regulations apply, that person shall not provide a train service in Northern Ireland unless he is authorised to do so by a European licence which is appropriate for that train service, and any person who provides such services without such a licence shall be 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 This is the text as originally made; later amendments are not shown here.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
breaching the provision
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 43(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 provides such services without such a licence.
  2. Doing what the provision prohibits, or failing to do what it requires under the Railways Infrastructure (Access, Management and Licensing of Railway Undertakings) Regulations (Northern Ireland) 2016.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
£5,000
Maximum prison (summary)
Not determined

expressed as the statutory maximum (the prescribed sum): the same words mean £5,000 in England and Wales and £10,000 in Scotland.

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
1 December 2016
In force from
23 January 2017
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 Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012, establishing a single European railway area (Recast) (O.J. No. L343, 14.12.12, p.32) (“the Directive”). The Directive repeals 3 key EU measures: (i) Council Directive 91/440/EEC of 29 July 1991 on the development of the communities railways (O.J. No. L237, 24.8.1991, p.25): (ii) Council Directive 95/18/EC of 19 June 1995 on the licensing of railway undertakings (O.J. No. L143, 27.06.1995, p.70): and (iii) Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (O.J. No. L75, 5/03/2001, p.29), together with the various Directives amending these and consolidates these provisions in one place. The Directive also makes some substantive changes to the consolidation legal obligations, although most of these remain unchanged. Part 1 contains preliminary provisions. Part 2 Regulations 4 to 7 and Schedule 1 grant access rights to operators of international passenger and freight services to the Northern Ireland rail network. It also grants all applicants the right of access to, and the supply of, the services listed in Schedule 1 to these Regulations. Part 3 Regulations 8 to 13 impose certain separation requirements between infrastructure managers and railway undertakings. Regulation 10 imposes new provisions relating to independence and accounts where service providers are under direct or indirect control of dominant bodies or firms. Regulation 11 provides for the publication of an indicative railway infrastructure strategy. Regulation 12 requires the drawing up of a business plan by infrastructure managers, and applicants are given the opportunity to comment on a draft. Railway undertakings must also draw up a business plan. Infrastructure managers are placed under a requirement to produce a network statement containing the information set out in Regulation 13, the detailed content of which has been expanded. New provisions in this Part include a requirement that separate accounts are published for rail freight transport businesses and passenger transport businesses respectively, with strengthened provisions regarding the separate treatment of public funds provided for public services. Part 4 Regulations 14 to 18, together with Schedule 2, set out the structure for the charging of fees for use of railway infrastructure, and the charging principles. Regulation 14 requires service providers to charge fees which must be used to fund their business. Regulation 15 contains information on infrastructure costs and accounts. Regulation 16 contains details of the performance scheme. Regulation 17 provides further provisions as to the calculation of payments under performance schemes, and allows for a dispute resolution system. Regulation 18 permits a charge to be imposed for regular non-usage of allocated train paths. Schedule 2 sets out principles of access charging and the charges for the supply of such services must not exceed the costs of providing them, plus a reasonable profit. Paragraph 2 of this Schedule requires the infrastructure manager to evaluate the relevance of any mark-up charges for different market segments. Paragraph 7 of this Schedule imposes new principles to apply to performance schemes. Part 5 Regulations 19 to 30, together with Schedule 3, set out the framework and timetable for the process of allocating infrastructure capacity. The trading of capacity is prohibited, and allocation in the form of fixed train paths cannot be granted for longer than one timetable period. This part sets out the procedure that must be followed where an element of the railway infrastructure is congested and provides a ‘use it or lose it’ provision in respect of allocated capacity. Part 6 Regulations 31 to 37; allocate certain regulatory functions to the Office of Rail and Road (“ORR”). Regulation 32 provides a right of appeal to the ORR for applicants aggrieved with various aspects of the allocation of capacity and the fees charged for the use of that capacity, and requires the ORR to make a decision on such appeals within two months. Regulation 34 requires the ORR to monitor competition in the rail services market and to take appropriate action to deal with undesirable developments in the market either arising out of its own investigations, or from appeals which have been submitted. Regulation 35 gives the ORR the power to audit various bodies, and makes clear that its power to request information under Regulation 36 includes a power to request the information listed in Schedule 5. Regulation 37 provides for cooperation between regulatory bodies. Part 7 Regulations 38 to 42, set out the arrangements for enforcement by the regulatory bodies. This includes the power to issue directions when required, the procedures to be followed for such directions and the enforcement arrangements. Part 8 Regulations 43 to 47, impose requirements for licensing of railway undertakings; the provision of train services without having a European licence is made a criminal offence (Regulation 43). The Department is appointed as the body to issue European licences (Regulation 44). Applicants for such licences must satisfy requirements as to good repute, professional competence, financial fitness and insurance cover for liabilities (Regulation 46 and Schedule 4). Such licences are valid as long as the licence holder complies with the requirements referred to in Schedule 4 and the requirements to submit the licence for review or approval (Regulation 45). The licence is subject to monitoring and review by the Department, who may suspend or revoke such licences in certain circumstances (Regulation 46). Part 9 Regulations 48 to 52, provide for Statements of National Regulatory Provisions (SNRP’s). In addition to requiring a European licence, railway undertakings providing services in Northern Ireland will require a Statement of National Regulatory Provisions (Regulation 49). One or more conditions will be included in a SNRP by the Department, but these conditions must be compatible with Community law and must not be discriminatory (Regulation 51). SNRPs may be modified by consent (Regulation 52). Part 10 Regulations 53 to 58, contain miscellaneous provisions including the provision of enforcement and penalty powers for the Office of Rail and Road and the Department in relation to the implementation of directions/ orders and compliance with these. Schedule 5 stipulates the accounting information required by the Office of Rail and Road.

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