UK Offence Report

General provisions relating to the marking, identification, labelling and packaging of EC fertilisers

regulation 5(1) of The EC Fertilisers (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

1 Any manufacturer who places on the market

a fertiliser designated as an EC fertiliser shall be guilty of an offence unless the identification markings relating to it–

a are borne as specified in paragraph (1) of Article 9 (markings);

b comply with Article 9(2);

c include an expression of contents as specified in paragraphs (1)(a) and (d), (4), (5) and (6) of Article 6 (compulsory statements);

d include the additional instructions called for by Article 9(3), if it is

a fluid fertiliser; and

e have been provided as required by paragraph (1) of Article 7 (identification).

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 This is the text as originally made; later amendments are not shown here.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

gs for an offence under any provision of these Regulations, it shall be a defence for the person charged to prove that all reasonable precautions were taken and all due diligence exercised to avoid commission of the offence by that person or by another person under that person’s control. 5 If in any case the defence provided by paragraph (4) involves the allegation that

What would breach regulation 5(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. On these words an offence is committed where a manufacturer places on the market a fertiliser designated as an EC fertiliser.
  2. Selling the goods under the EC Fertilisers (Scotland) Regulations 2006 where the instrument prohibits the sale outright.
  3. Supplying without carrying out a check the instrument requires first, even where the sale would otherwise be lawful.
  4. 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
Maximum prison (summary)
3 months
Maximum prison (on indictment)
2 years

expressed as the statutory maximum (the prescribed sum): the same words mean £5,000 in England and Wales and £10,000 in Scotland.

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
9 November 2006
In force from
4 December 2006
Extent
S

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, which extend to Scotland only, are made under section 2(2) of the European Communities Act 1972 and implement in Scotland Regulation (EC) No. 2003/2003 of the European Parliament and of the Council of 13 October 2003 relating to fertilisers (O.J. No. L 304, 21.11.2003, p.1.) (“the Community Regulation”). The Regulations create offences for breaches of the Community Regulation by manufacturers of fertilisers. “Manufacturer” is defined in Article 2 of the Community Regulation. The Regulations describe the types of fertiliser that may be designated as an “EC fertiliser” (regulation 3). Regulation 4 makes provision in respect of compliance with the provisions on tolerances set out in the Community Regulation. General provisions for the identification, marking, labelling and packaging of fertilisers designated as EC fertilisers are applied by regulation 5. The Regulations also apply additional requirements for the marking and identification of inorganic primary nutrient fertilisers (regulation 6) and inorganic secondary nutrient fertilisers (regulation 7) as well as additional provisions relating to the marking, identification and packaging of inorganic micro-nutrient fertilisers (regulation 8). Manufacturers are required to keep the records described in Article 8 of the Community Regulation (regulation 9). In the event that a fertiliser designated as an EC fertiliser fails to comply with the requirements of the Community Regulation in a manner which is not an offence under these Regulations, the Scottish Ministers may serve a compliance notice (regulation 10). Further provisions relating to compliance notices are set out in regulation 14. Local authorities are responsible for enforcing these Regulations (regulation 11) with powers of entry set out in regulation 12, powers of inspectors set out in regulation 13 and offences in relation to obstruction of persons acting in the execution of these Regulations set out in regulation 15. Provisions relating to the approval of laboratories competent to analyse samples for the purposes of the Community Regulation are set out in regulation 16 and specific provisions for the treatment of samples are contained in regulation 17. Inspectors have the power to require remedial action to be taken in respect of a fertiliser designated as an EC fertiliser where it is believed that an offence under the Regulations has been committed, or to seize the fertiliser for the purposes of making an application to a sheriff for its destruction or disposal (regulation 18). Regulation 19 provides the Scottish Ministers with a power to give directions for the mitigation or elimination of risk in circumstances where they have justifiable grounds for believing that an EC designated fertiliser, although complying with the requirements of the Community Regulation, constitutes a risk to safety or health of humans, animals or plants or a risk to the environment. Penalties for offences under the Regulations are established by regulation 20. Regulation 20 also provides for a due diligence defence in proceedings for offences under the Regulations. Regulation 21 provides that an act or omission which is an offence under the Regulations is not an offence under Part IV of the Agriculture Act 1970 (c. 40) or the Fertilisers Regulations 1991 (S.I. 1991/2197) and regulation 22 provides that the requirements of the Fertilisers (Sampling and Analysis) Regulations 1996 (S.I. 1996/1342) do not apply to sampling or analysis carried out for the purposes of these Regulations. No regulatory impact assessment has been prepared in respect of these Regulations

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