UK Offence Report

Application of sections 76G and 76H to certain private supplies

regulation 76HA(3) of The Private Water Supplies (Notices) (Scotland) Regulations 2006

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 In section 76H, after subsection (10), insert–

11 Any relevant person on whom

a notice is served under section 76G above, who fails without reasonable excuse to take any step as specified in the notice within the period so specified shall be guilty of an offence and liable on summary conviction to

a fine not exceeding level

5 on the standard scale. .

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 This is the text as originally made; later amendments are not shown here.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
Strict liability
Burden of proof
An element of the offence, for the prosecution to prove

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.

“Without reasonable excuse” here is an element of the offence rather than a defence, so its absence is for the prosecution to prove (R v Charles [2009] EWCA Crim 1570).

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision; qualified by reasonable excuse (an element; prosecution disproves once raised).

The defence, as drafted

whom a notice is served under section 76G above, who fails without reasonable excuse to take any step as specified in the notice within the period so specified shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale. .

What would breach regulation 76HA(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. On these words an offence is committed where a person fails without reasonable excuse to take any step as specified in the notice within the period so specified.
  2. Doing what the provision prohibits, or failing to do what it requires under the Private Water Supplies (Notices) (Scotland) Regulations 2006.

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 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
Status not determined
Made
30 May 2006
In force from
3 July 2006
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, made under section 2(2) of the European Communities Act 1972 (c. 68), modify sections 76G and 76H of the Water (Scotland) Act 1980 (c. 45) (“the 1980 Act”) in their application to private water supplies to which the Private Water Supplies (Scotland) Regulations 2006 (“the 2006 Regulations”) apply. The 2006 Regulations introduce a new scheme for the regulation of private water supplies in Scotland. Where supplies do not meet the requisite water quality standards set out in those Regulations, local authorities can serve a notice under sections 76G and 76H of the 1980 Act requiring those responsible for those supplies to take steps to remedy the failure. New section 76HA(2), which is inserted by regulation 2 of these Regulations, modifies section 76G of the 1980 Act to place a duty on local authorities to serve notices in the case of Type A supplies (as defined in the 2006 Regulations). Type A supplies are those which must satisfy the water quality standards set out in Council Directive 98/83/EC on the quality of water intended for human consumption (O.J. No. L 330, 5.12.98, p.32). In the case of Type B supplies, to which the Directive does not apply, local authorities retain their powers to serve notices. New section 76HA(3) modifies section 76H of the 1980 Act to make it an offence to fail to comply with any notice served under section 76G of that Act.

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 0.92.

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