UK Offence Report

Offences and penalties

regulation 36(5) of The Animals and Animal Products (Import and Export) (Scotland) Regulations 2007 (revoked)

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

5 No contravention of, or failure to comply with,

a provision of these Regulations by the Scottish Ministers,

a local authority,

a veterinary inspector or an inspector shall constitute an offence.

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 This is the text as originally made; later amendments are not shown here.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
an local authority
Conduct
contravening a requirement of the instrument
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 an local authority 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 36(5)?

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. Doing the thing the provision prohibits under the Animals and Animal Products (Import and Export) (Scotland) Regulations 2007, whatever the reason for doing it.
  2. Where the requirement is a positive duty, letting the time for performing it pass without performing it.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
£5,000
Standard scale
Level 5
Maximum prison (summary)
3 months
Maximum prison (on indictment)
2 years

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
6 March 2007
In force from
2 April 2007
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 revoke and re-enact with changes the Animals and Animal Products (Import and Export) (Scotland) Regulations 2000 (S.S.I. 2000/216 as amended by S.S.I. 2000/300, 2002/125, 2002/196, 2005/278, 2005/502 and 2006/335) (“the 2000 Regulations”). They implement Council Directive 90/425/EEC (concerning veterinary and zootechnical checks applicable in intra-Community trade in certain live animals and products with a view to the completion of the internal market) (O.J. No. L224, 18.8.90, p.29) and Council Directive 91/496/EEC (laying down the principles governing the organisation of veterinary checks on animals entering the Community from third countries) (O.J. No. L268, 24.9.91, p.56). They continue to include the following provisions– The Regulations make it an offence to export, import or transport for intra-Community trade any animal or animal product to which Directive 90/425/EEC applies except in accordance with regulations 5, 6 and 7. Part I of Schedule 3 lists individual instruments governing trade of specific types, identifying relevant provisions and specifying any additional requirements which must be complied with pursuant to regulations 5 and 6. Specific provision is made in relation to the transport of cattle, pigs, sheep and goats (regulation 7 and Part II of Schedule 3). A statutory basis is provided for the Poultry Health Scheme, which is a means of approving and monitoring poultry establishments engaging in intra-Community trade of poultry and hatching eggs (regulation 5(5) and Schedule 4). The approval and monitoring of such establishments is a requirement of Council Directive 90/539/EEC. Regulation 5(5) prohibits exports unless the relevant commodities originate from an establishment which is a member of the Poultry Health Scheme and conform to the requirements of Directive 90/539/EEC. Schedule 4 makes provision for the operation of the Poultry Scheme including setting out how the fees for membership and registration are calculated and providing for re-inspection fees. It also provides for powers for suspension or revocation of membership under specified circumstances. Provision is also made for arrangements for the approval of laboratories to undertake Mycoplasma and Salmonella testing under the Poultry Health Scheme including provision for the annual approval fee (regulation 10 and Schedule 5). The Regulations set out the procedures and requirements for the registration of dealers in animals and animal products (regulation 8) and the approval of centres and teams engaging in intra-Community trade in animals and animal products (regulation 9). The Regulations also place duties on consignees of animals and animal products (regulation 12), and provide for the approval of assembly centres (regulation 13). They specify the procedure to be followed in the case of illegal consignments (regulation 14). These Regulations prohibit the importation of any animal from a third country unless the conditions of Council Directive 91/496/EEC and the relevant provisions of the EU Instruments, together with any additional requirements, listed in Part II of Schedule 7 are complied with (regulation 17). Regulation 17, with Part I of Schedule 7 prescribe the third countries from which animals may be imported. Regulation 18, with Schedule 2, specify the places at which animals may be imported through Border Inspection Posts. The procedure for importation is provided for in regulation 19, and the payment of fees in connection with that importation in regulation 21. Procedures to be followed where a consignment constitutes a danger to health or is otherwise illegal are set out in regulations 22 and 23. Regulation 24 requires that, at the place of destination, certain animals (elephants and other Artiodactyla) may not be released until authorised by an authorised officer of the Scottish Ministers. Post-import controls are provided for in regulation 25. Provision is made for the arrangements for quarantine of captive birds imported from third countries as required by Commission Decision 2000/666/EC (O.J. No. L 278, 31.10.00, p.26) (regulation 20 and Schedule 8). Specific requirements are imposed upon quarantine managers as to the running of quarantine centres and facilities. General prohibitions are applied to any persons in respect of entry into a quarantine facility or centre and removal of birds and carcases from quarantine without the authorisation of a veterinary inspector. In addition, inspectors have been given powers of entry, inspection and sampling in relation to the quarantine of captive birds. The Veterinary Laboratories Agency is designated as the official laboratory for the purposes of the Decision and there is provision for charges for laboratory testing carried out in connection with it (regulation 20 and Schedule 8). Pursuant to EU obligations such imports are currently not permitted (regulation 16(4). Part 4 makes provision for imports from third countries which undergo the requisite veterinary border checks on arrival at another member State. The Regulations also give powers to the Scottish Ministers to take action in the event of an outbreak of disease in another state (regulation 29) and make provision for the notification of decisions (regulation 30), the appointment of inspectors (regulation 31) and their powers (regulation 32). There is also provision for the recovery of expenses (regulation 33). Obstruction of any person acting in the execution of the Regulations is made an offence (regulation 34), and it is an offence under regulation 36 to contravene the Regulations (excepting certain fees provisions). Penalties are provided for (regulation 36). Disapplication of other legislation relating to the import of animals continues to be provided for (regulation 37, with Schedule 9). Regulation 37 contains transitional provisions (with Part IV of Schedule 8). The revocation of the 2000 Regulations, and relevant amending Regulations, is provided for at regulation 38. Schedule 1 has been revised and updated to make reference to Community instruments which amend Council Directive 90/425/EEC and Council Directive 91/496/EEC and have recently come into force. Schedules 3 and 7 (Schedule 5 to the 2000 Regulations) have also been revised and updated to implement recent obligations. Changes have been made to paragraphs 1 to 15 of Part I of Schedule 3 and paragraph 16 has been removed. The “additional requirement” (d) in paragraph 1, now specifically identifies special conditions on exports of cattle to Germany, Denmark, Italy, Austria, Finland and Sweden. New paragraphs have been added to Part I of Schedule 7 in relation to the countries from which imports are permitted of bees, captive birds, and cats, dogs and ferrets going to approved bodies, institutes or centres. The list in that Part for cloven hoofed animals, elephants and zoo ungulates has also been described more completely and it and the list for finfish have both been updated. In Part II of Schedule 7, new paragraphs list instruments covering trade in bees, captive birds and cats, dogs and ferrets going to approved bodies, institutes or centres. Reference to Council Directive 72/462/EEC has been removed, as it has been repealed, and paragraph 2 further implements Council Directive 2004/68/EC, in relation to zoo ungulates. Provision is now made for laboratories to be approved for testing of Salmonella in addition to Mycoplasma under the Poultry Health Scheme and fees may be charged for quality assurance testing for such an approval and for carrying out inspections of laboratories (Schedule 5). Provision is also made for fees to be charged in respect of approvals of quarantine centres or facilities for the quarantine of captive birds (regulation 20 and Schedule 8). No regulatory impact assessment has been produced for 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 0.88.

Basis
the provision says the conduct “is an offence”; the provision says the conduct “constitutes an offence”
Confidence
0.88 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