UK Offence Report

Secondary treatment of food presented for import to which Article 4.3 applies

regulation 9(8) of The Contaminants in Food (Scotland) Regulations 2004

The provision has been revoked and no saving provision preserving liability for earlier conduct was found.

What the provision says

8 Any person who fails to comply with any of the requirements specified in

a notice served under paragraph (1) shall be guilty of an offence and liable on summary conviction to

a fine not exceeding level

5 on the standard scale or to imprisonment for

a term not exceeding three months or to both.

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 This is the text as originally made; later amendments are not shown here.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 comply with a notice or direction
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 9(8)?

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 any of the requirements specified in a notice served under paragraph (1).
  2. Being served with a notice under the Contaminants in Food (Scotland) Regulations 2004 and doing nothing by the date it specifies.
  3. Doing part of what the notice requires, where it required all of it.
  4. Disagreeing with the notice and ignoring it, rather than using whatever appeal the instrument provides.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
£5,000
Standard scale
Level 5
Maximum prison (summary)
3 months

in Scotland a reference to a level is construed as referring to the standard scale as it currently stands (CP(S)A 1995 s.225(2)), 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
Revoked
Revoked by
The Contaminants in Food (Scotland) Regulations 2005
Revoked on
1 January 2006
Made
2 December 2004
In force from
25 December 2004
Extent
S

How this was established: the instrument was revoked by a later instrument found in this corpus.

What the instrument is for

(This note is not part of the Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations, which extend to Scotland only, revoke and re-enact with changes the Contaminants in Food (Scotland) Regulations 2003. The Regulations– a make provision for the continued enforcement and execution of Commission Regulation (EC) No. 466/2001 setting maximum levels for certain contaminants in foodstuffs (“the Commission Regulation”) (as corrected by a corrigendum published on 30th November 2001) and as amended by Council Regulation (EC) No. 2375/2001, Commission Regulation (EC) No. 221/2002, Commission Regulation (EC) No. 257/2002, Commission Regulation (EC) No. 472/2002 (as corrected by corrigendum published on 23rd March 2002), Commission Regulation (EC) No. 563/2002 (as corrected by a corrigendum published on 14th June 2002), Commission Regulation (EC) No. 1425/2003, Commission Regulation (EC) No. 2174/2003, Commission Regulation (EC) No. 242/2004, Commission Regulation (EC) No. 455/2004 and Commission Regulation (EC) No. 684/2004; b implement the following Commission Directives:– i Commission Directive 98/53/EC laying down the sampling methods and methods of analysis for the official control of the levels for certain contaminants in foodstuffs; ii Commission Directive 2001/22/EC laying down the sampling methods and the methods of analysis for the official control of the levels of lead, cadmium, mercury and 3-MCPD in foodstuffs (as corrected by a Commission Decision of 4th December 2001); iii Commission Directive 2002/26/EC laying down the sampling methods and the methods of analysis for the official control of the levels of ochratoxin A in foodstuffs; iv Commission Directive 2002/27/EC amending Directive 98/53/EC laying down the sampling methods and the methods of analysis for the official control of the levels for certain contaminants in foodstuffs; and v Commission Directive 2002/69/EC laying down the sampling methods and the methods of analysis for the official control of dioxins and determination of dioxin-like PCBs in foodstuffs (as corrected by a corrigendum published on 20th September 2002); vi Commission Directive 2003/78/EC laying down the sampling methods and the methods of analysis for the official control of the levels of patulin in foodstuffs; and vii Commission Directive 2004/16/EC laying down the sampling methods and the methods of analysis for the official control of the levels of tin in canned foods; c subject to transitional provisions (in regulations 10 and 11), provide that it is an offence to– i place on the market certain foods if they contain contaminants of any kind specified in the Commission Regulation at levels exceeding those specified (subject to a derogation applicable to certain types of lettuce and spinach); ii use foods containing such contaminants at such levels as ingredients in the production of certain foods; iii mix foods which comply with the maximum levels referred to above with foods which do not; iv mix foods to which the Commission Regulation relates and which are intended for direct consumption with foods to which the Commission Regulation relates and which are intended to be sorted or otherwise treated prior to consumption; or v detoxify by chemical treatments food not complying with the limits specified in the Commission Regulation (regulation 3); d specify the enforcement authorities (regulation 4); e prescribe sampling and analysis requirements in relation to foods subject to the Commission Regulation, and in so doing modify section 29 of the Food Safety Act 1990 so far as it applies to the taking of samples of the foods concerned (regulation 5); f provide a defence in relation to exports in implementation of Article 12 of Regulation (EC) No. 178/2002 of the European Parliament and of the Council laying down general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (regulation 6); g provide for the application of specified provisions of the Food Safety Act 1990 for the purposes thereof (regulation 7); h provide for the re-export out of the European Community of food presented for import which fails to comply with certain requirements of regulation 3 but does not pose a serious risk to human health and the destruction of such food where it does pose such a risk (regulation 8); i establish a process by which certain food that has been presented for import may be placed on the market subject to conditions (regulation 9); j make consequential amendments to the Food Safety (Sampling and Qualifications) Regulations 1990 (regulation 12); and k revoke the Contaminants in Food (Scotland) Regulations 2003, and the Tin in Food Regulations 1992 in so far as they apply to Scotland (regulation 13). The Regulations differ from the Contaminants in Food (Scotland) Regulations 2003 by– a introducing methods of sampling and analysis relating to the presence of patulin and tin in food (regulation 5(1)(f) and (g)); b extending the transitional provisions to food containing patulin (regulation 11(b)); c permitting certain food that has been presented for import to be placed on the market subject to conditions (regulation 9). Four Regulatory Impact Assessments, which include a compliance cost assessment of the effects which these Regulations would have on business costs, have been prepared in respect of these Regulations and a copy of each has been placed in the Scottish Parliament Information Centre. Copies may be obtained from the Food Standards Agency, 6th Floor, St Magnus House, 25 Guild Street, Aberdeen AB11 6NJ.

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 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