UK Offence Report

Non-compliance notices

regulation 11(3)(f) of The Marketing of Bananas Regulations (Northern Ireland) 2019

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

f a warning that it is an offence in terms of these Regulations to display or offer for sale, deliver or market in any other manner bananas in contravention of the banana marketing standards;

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 This is the text as originally made; later amendments are not shown here.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

ffence under these Regulations, except under regulation 17, it is a defence for the person (“C”) charged to prove that their actions were carried out with lawful authority or that C took all reasonable precautions and exercised all due diligence to avoid committing the offence. 2 If C intends to rely on the defence provided by paragraph (1), C shall serve on the prosecut

What would breach regulation 11(3)(f)?

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 Marketing of Bananas Regulations (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
Summary only — tried in a magistrates’ court
Maximum fine
£5,000
Standard scale
Level 5
Maximum prison (summary)
Not determined

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
27 March 2019
In force from
29 March 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 Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations provide for the enforcement of the banana marketing standards as provided for by Article 75 of Council Regulation (EC) No 1308/2013 (O.J. No. L 347, 20.12.2013, p.671) establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation), and contained in Commission Implementing Regulation (EU) No 1333/2011 laying down marketing standards for bananas, rules on the verification of compliance with those marketing standards and requirements for notifications in the banana sector (O.J. No. L 336, 20.12.2011, p.23). Annex I of the Commission Implementing Regulation sets out detailed requirements relating to quality, size, presentation and marking of bananas at the “un-ripened green stage” of marketing after preparation and packaging where the bananas are intended for supply fresh to the consumer. The marketing standards are applicable to bananas falling within CN code 0803 90, excluding plantains, fig bananas and bananas intended for processing, and apply to bananas originating in third countries at the stage of release for free circulation, to bananas originating in the EU at the stage of first landing at a Community port, and to bananas delivered fresh to the consumer in the producing region at the stage of leaving the packing shed. The Regulations designate the Department of Agriculture, Environment and Rural Affairs as the competent national authority and inspection body in Northern Ireland and provide for the Department to exchange information with other competent national authorities and inspection bodies (regulation 3). The Regulations make the failure to comply with the banana marketing standards an offence. They contain additional offences necessary for the effective enforcement of the banana quality standards (regulation 4 and Schedule 1). Regulation 5 provides that the powers under Parts 3 and 4 of the Regulations may not be exercised on premises used wholly as a dwelling house. The Regulations confer on authorised officers powers of entry (regulation 6) and other powers, including seizure powers (regulation 7). They also contain powers to affix non-compliance labels indicating various types of non-conformity with the marketing standards for bananas (regulations 9, 10 and 11). These labels must contain the information set out in Schedule 2 (Parts 1 and 2). Regulation 12 confers power on authorised officers to prohibit the movement of bananas and gives a right of review to those served with a written notice informing of the exercise of that power. Regulation 13 confers power to affix a stop notice label warning of the exercise of power in regulation 12, which must contain the information set out in Schedule 2 (Parts 3 and 4). Regulation 14 makes provision for giving consent by authorised officers to the movement of controlled bananas where certain conditions are met. Regulation 15 confers powers on authorised officers to accept written undertakings and sets out the contents of a written undertaking. Regulations 16, 17, 18 and 19 respectively contain provisions on offences relating to controlled bananas, to the obstruction of an authorised officer, to the commission of an offence due to the fault of another person and to the commission of offences by bodies corporate etc. Regulation 20 provides for defences of acting with lawful authority or exercising due diligence and taking reasonable precautions. Regulation 21 provides that the penalty for offences is on summary conviction a fine not exceeding level 5 on the standard scale. These Regulations disapply (see regulation 22) the Horticulture Act (Northern Ireland 1966 (c. 15 (N.I.)) as it does not apply to bananas and, insofar as they apply to Northern Ireland, the Agricultural Marketing Act 1958 (c.47) from the banana marketing standards. No Business and Regulatory Impact Assessment has been prepared for these Regulations as they have no impact on the cost of business in Northern Ireland.

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 0.90.

Basis
the provision says “it is an offence”; the provision says an offence is committed “if” something happens
Confidence
0.90 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