Keeping, breeding, transporting etc. of invasive alien species

article 3(1) of The Invasive Alien Species (Enforcement and Permitting) Order (Northern Ireland) 2019

• Status not determined
• Requires proof of a state of mind
• Either way
• Health and safety, environment, waste and fisheries

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 1 Any person who contrary to Article 7 (restrictions) of the Principal Regulation intentionally— a keeps, including in a contained holding; b breeds, including in a contained holding; c transports to or from Northern Ireland to or from any place within Great Britain, or within Northern Ireland, except where such transportation is of species to facilities in the context of eradication; d places on the market; e uses or exchanges; f permits to reproduce, grows or cultivates, including in a contained holding; or g releases into the environment, an invasive alien species commits 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 This is the text as originally made; later amendments are not shown here.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

selling or supplying something the instrument restricts

Fault element

Requires proof of a state of mind

Burden of proof

No statutory defence — prosecution proves everything

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

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: mens rea word in the offence-creating words: intentionally.

What would breach article 3(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. Selling the goods under the Invasive Alien Species (Enforcement and Permitting) Order (Northern Ireland) 2019 where the instrument prohibits the sale outright.
2. Supplying without carrying out a check the instrument requires first, even where the sale would otherwise be lawful.
3. Offering for sale counts as well as selling: displaying stock is enough where the provision reaches an offer.

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.

• Sentencing organisations: fines and the means of a corporate defendant All courts in England and Wales

  How a fine on a company is arrived at from its turnover. Relevant far beyond the guidelines that state it, because a very large share of the offences in this corpus can only be committed by an organisation.

• 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.

• Imposition of community and custodial sentences: definitive guideline All courts in England and Wales

  When a community order or custody is justified at all, and the presumption against short custodial sentences.

• 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

15 August 2019

In force from

1 December 2019

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 gives effect to Regulation (EU) No. 1143/2014 of the European Parliament and of the Council on the prevention and management of the introduction and spread of invasive alien species therein (OJ L31/35, 4.11.2014)(“the Principal Regulation”) and of Commission Implementation Regulation (EU) No. 2016/1141 (OJ L189/4, 14.7.2016) adopting a list of invasive alien species of Union concern pursuant to Regulation (EU) No. 1143/2014. This Order provide for criminal offences relating to breach of requirements of the Principal Regulation. Part 2 of the Order contains criminal offences. Parts 3 and 4 contain defences to those offences and penalties respectively. Part 5 sets out the enforcement provisions. In particular Articles 22 to 24 provide for enforcement notices which allow the Department to serve on the occupier or, where a different person, the owner, or both who has caused or permitted, whether knowingly or otherwise, a species on the Union list to be present on their premises. This Order will be enforced by the Department and authorised persons. Part 6, provides for the issue of permits (Article 28) in accordance with Articles 8 and 9 of the Principal Regulation. Part 7 contains licencing provisions, which may be issued for a number of different activities, provided specific conditions are met (Article 29). Part 8 contains provisions ensuring that the Order works alongside related legislation and avoids duplication of controls between similar regimes where possible. Article 32 makes amendments to Parts 1 and 2 of Schedule 9 to the Wildlife (Northern Ireland) Order 1985. An impact assessment has not been produced for this instrument as no impact on the private, voluntary or public sectors is foreseen.

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.

• Agriculture, Environment and Rural Affairs (Amendment) (Northern Ireland) (EU Exit) (No. 2) Regulations 2019 Commons · 28 October 2019 · George Eustice

  Finally, this SI amends the Invasive Alien Species (Enforcement and Permitting) Order (Northern Ireland) 2019 to ensure parity with retained EU law, omitting the definition of “Union list” throughout the order and, where appropriate, replacing that term with “list of species of special concern”. That list is defined in the amendments to reflect that the list is derived from the EU’s list of invasive alien species.…

• Agriculture, Environment and Rural Affairs (Amendment) (Northern Ireland) (EU Exit) (No. 2) Regulations 2019 Lords · 30 October 2019 · Baroness Chisholm of Owlpen (Con)

  My Lords, the instrument amends existing domestic legislation to ensure operability following EU exit. The SI relates only to Northern Ireland, concerning devolved areas of policy ranging from animal and plant health, non-native invasive alien species and the wider ecosystem, which would normally be dealt with by a devolved Administration. The regulation relates to protecting biosecurity. The changes do not…

Other offences in the same instrument

• Enforcement noticesarticle 22(6)
• Recovery of expenses of enforcement noticesarticle 24(1)
• Keeping, breeding, transporting etc. of invasive alien speciesarticle 3(2)
• Keeping, breeding, transporting etc. of invasive alien speciesarticle 3(3)
• False statementsarticle 4(1)
• False statementsarticle 4(2)
• Misuse of permits or licencesarticle 5
• Compliance with permits and licencesarticle 6
• Obstruction and deceptionarticle 7(1)
• Obstruction and deceptionarticle 7(2)
• Obstruction and deceptionarticle 7(3)
• Obstruction and deceptionarticle 7(4)

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

• This provision on legislation.gov.uk The authoritative text. Check it before relying on anything here.
• The Invasive Alien Species (Enforcement and Permitting) Order (Northern Ireland) 2019 Every offence this instrument creates, and its explanatory note
• Health and safety, environment, waste and fisheriesOther offences on the same subject
• Offences created in 2019