UK Offence Report

Contravention of The Avian Influenza (H5N1 in Wild Birds) (Scotland) Order 2006

the instrument as a whole of The Avian Influenza (H5N1 in Wild Birds) (Scotland) Order 2006

The provision has been revoked and no saving provision preserving liability for earlier conduct was found.

What the provision says

Contravening this instrument is an offence under section

73 of the Animal Health Act 1981. The instrument itself contains no offence-creating words.

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 This is the text as originally made; later amendments are not shown here.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

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.

Classifier’s reasoning: contravention offences of this kind are strict as to the breach; the fault position is governed by the parent Act and was not read from it.

What would breach the instrument as a whole?

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 Avian Influenza (H5N1 in Wild Birds) (Scotland) Order 2006 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
Set by another provision — the instrument states the penalty by reference to an Act or to another regulation
Maximum fine
Not determined
Maximum prison (summary)
Not determined

The instrument does not state a penalty itself. It sets one by reference to section 73 of the Animal Health Act 1981.

the penalty is in the parent Act, not in this instrument.

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
Revoked
Revoked by
The Avian Influenza (H5N1 in Wild Birds) (Scotland) Order 2007
Revoked on
15 February 2007
Made
5 April 2006
In force from
5 April 2006
Extent
Not stated

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 Order) — the explanatory note published with the instrument, © Crown copyright.

This Order applies in Scotland only and implements Commission Decision 2006/115/EC concerning certain protection measures in relation to highly pathogenic avian influenza in wild birds in the Community and repealing Decisions 2006/86/EC, 2006/90/EC, 2006/91/EC, 2006/94/EC, 2006/104/EC and 2006/105/EC. This Order provides that if the Chief Veterinary Officer (Scotland) advises the Scottish Ministers that avian influenza of subtype H5 is present in a wild bird or wild bird carcase and that they suspects, or is of the opinion that, the neuraminidase type is N1, the Scottish Ministers must declare a wild bird protection zone and a wild bird surveillance zone (articles 8 and 9). Article 13 sets out the circumstances in which the Scottish Ministers may amend or revoke a declaration of a wild bird protection zone or a wild bird surveillance zone. Schedule 1 sets out the measures that are to apply in a wild bird protection zone including measures relating to the movement and gathering of birds (Part 1), the movement of hatching eggs (Part 2), the movement of meat (Part 3), the movement of other poultry products (part 4) and the use or movement of litter or manure and the hunting of birds (Part 5). Schedule 2 set out the measures that are to apply in a wild bird surveillance zone including measures relating to the movement of poultry and other birds and hatching eggs, and prohibitions on poultry gatherings and the hunting of wild birds. Schedule 3 set out the biosecurity measures that are to apply in respect of premises where poultry or other captive birds are kept in a wild bird protection zone or a wild bird surveillance zone. Article 11 provides that the Scottish Ministers may impose additional measures. The Scottish Ministers must ensure that veterinary inspectors inspect commercial premises in a wild bird protection zone or a wild bird surveillance zone to monitor the spread of avian influenza (article 12). Articles 17 to 20 set out the powers of inspectors to impose biosecurity measures (article 17), to take any person with them on to premises to enforce this Order (article 18) and powers to take steps in cases of default (article 19). Article 20 provides that any direction under this Order must be complied with at the expense of the person to whom it is given. Article 21 requires a person to provide reasonable assistance to an inspector and article 22 provides that no person may furnish information that he knows to be false or misleading. Article 24 provides a defence to a person who fails to comply with any restriction or requirement imposed under this Order that he did not know of that restriction or requirement or could not with reasonable diligence have obtained knowledge of it. This Order is enforced by the local authority (article 25). Breach of the Order is an offence under section 73 of the Animal Health Act 1981, punishable in accordance with section 75 of that Act. A Regulatory Impact Assessment has not been prepared in respect of this Order.

Read the full note and every offence in this 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 0.70.

Basis
the penalty comes from the enabling Act rather than from this instrument
Confidence
0.70 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