UK Offence Report

3 A person commits an offence if the person— a dishonestly issues a plant passport; b dishonestly alters a…

article 48(3) of The Plant Health Order (Northern Ireland) 2018 (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

3 A person commits an offence if the person—

a dishonestly issues

a plant passport;

b dishonestly alters

a plant passport; or

c dishonestly re-uses

a plant passport.

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 This is the text as originally made; later amendments are not shown here.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
Requires proof of a state of mind
Burden of proof
Legal burden on the defendant

The prosecution must prove both that the conduct happened and that it was done with the state of mind the provision names (dishonestly).

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: mens rea word in the offence-creating words: dishonestly.

The defence, as drafted

lant passport; or c dishonestly re-uses a plant passport. 4 It is a defence for a person charged with an offence under paragraph (1)(a)(xviii) to prove that the person reasonably believed— a that the disclosure was lawful; or b that the information had already and lawfully been made available to the public. 5 If an offence under this Order is proved to have been committed with the consent or connivance of, o

What would breach article 48(3)?

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. Doing what the provision prohibits, or failing to do what it requires under the Plant Health Order (Northern Ireland) 2018.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
Not determined
Standard scale
Level 5
Maximum prison (summary)
Not determined
Maximum prison (on indictment)
3 months

the level is stated but no money value is given: this instrument extends outside the United Kingdom, where the standard scale set by s.122(1) of the Sentencing Act 2020 does not run.

No penalty was determined from this instrument. It may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence. Absence of a figure here is not evidence that the offence carries no penalty.

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
24 October 2018
In force from
1 December 2018
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 revokes and consolidates with amendments the Plant Health Order (Northern Ireland) 2006 (S.R. 2006 No. 82) and replaces the Plant Health (Phytophthora ramorum) Order (Northern Ireland) 2005 (S.R. 2005 No. 23). It implements Council Directive 2000/29/EC on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community (OJ No L 169, 10.7.2000, p1) and related European Union plant health legislation, including the following Commission Implementing Decisions— a Commission Implementing Decision (EU) 2018/927 amending Implementing Decision (EU) 2015/789 as regards measures to prevent the introduction into and the spread within the Union of Xylella fastidiosa (Wells et al.) (OJ No L 164, 29.6.2018, p. 49); b Commission Implementing Decision (EU) 2018/5 amending Implementing Decision 2012/270/EU as regards emergency measures to prevent the introduction into and the spread within the Union of Epitrix cucumeris (Harris), Epitrix similaris (Gentner), Epitrix subcrinita (Lec.) and Epitrix tuberis (Gentner) (OJ No L 2, 5.1.2018, p. 11). This Order also introduces national measures to strengthen import requirements for oak trees to protect against Oak Processionary Moth. Part 1 is introductory and includes definitions. Article 2(4) provides for references to the European Union instruments listed in that provision to be read as references to those instruments as amended from time to time. Part 2 applies to plant pests and relevant material coming from countries outside the European Union, including relevant material from third countries coming via another part of the European Union where the Department has agreed to carry out certain checks on that material. “Relevant material” is defined in article 2(1). Article 5 prohibits the landing in Northern Ireland of certain plant pests and relevant material and imposes restrictions on other relevant material which may be imported into Northern Ireland from third countries. Article 6 requires importers of controlled imports of relevant material to provide the Department with advance notice of their landing and article 7 requires those imports to be accompanied by the appropriate phytosanitary certificate. Articles 10 to 12 prohibit the removal of this relevant material from an area of plant health control until an inspector has inspected the material and is satisfied that the material can be discharged. Article 8 exempts certain relevant material which is brought into Northern Ireland in a person’s baggage from the requirements in article 5 and other related requirements. Part 3 applies to plant pests and relevant material from the European Union (whether originating in the European Union or in third countries). Articles 19, 20 and 21 prohibit the introduction into Northern Ireland of certain plant pests and relevant material from another part of the European Union and contain prohibitions and restrictions on the movement of plant pests and relevant material and other activities in Northern Ireland. Article 22 requires certain relevant material to be accompanied by a plant passport when it is moved within Northern Ireland or consigned to another part of the European Union. Part 4 imposes a requirement on plant traders to be registered in respect of any activity which they carry out and which is regulated by the Order (articles 26 to 29) and makes provision for the Department to authorise plant traders to issue plant passports (article 30). Part 5 contains special arrangements governing relevant material from Switzerland. Part 6 contains general enforcement powers given to plant health inspectors. Part 7 imposes additional requirements in relation to certain solanaceous species (potatoes and tomatoes). Part 8 makes provision for the Department to grant licences authorising activities which would otherwise be prohibited by the Order. Part 9 requires certain plant pests which are present or suspected to be present in Northern Ireland to be notified to the Department or an inspector and makes provision for inspectors to request information about certain plant health matters. Part 10 contains offences for non-compliance with the Order and with requirements imposed under article 48. Article 49 sets out the penalties for the offences. (Contravention of any prohibition on landing imposed by this Order is an offence under the Customs and Excise Management Act 1979 (c.2)). Part 11 deals with revocations and transitional provisions. Article 52 requires the Department to review the operation and effect of this Order and publish a report at five-yearly intervals. An impact assessment has not been produced for this instrument as no impact on business or the private or voluntary sector is foreseen. The Explanatory Memorandum for this instrument is available alongside the instrument at www.legislation.gov.uk.

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 “commits 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