UK Offence Report

Contravention of The Avian Influenza (H5N1 in Wild Birds) (Scotland) Order 2007

the instrument as a whole of The Avian Influenza (H5N1 in Wild Birds) (Scotland) Order 2007

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

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 This is the text as originally made; later amendments are not shown here.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 2007 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
Status not determined
Made
8 February 2007
In force from
15 February 2007
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 Order) — the explanatory note published with the instrument, © Crown copyright.

This Order extends to Scotland only and implements Commission Decision 2006/563/EC concerning certain protection measures in relation to highly pathogenic avian influenza of subtype H5NI in wild birds in the Community and repealing Decision 2006/115/EC (O.J. No. L 222, 15.8.2006, p.11). It also specifies the health mark, and the alternative health mark pursuant to Directive 2002/99/EC, to be applied to fresh and processed poultry meat and meat products which are to be moved out of a wild bird control area to another part of the UK. These marks are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health of 1st December 2006. 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 a wild bird carcase and that the Chief Veterinary Officer (Scotland) suspects or confirms that the neuraminidase type is N1, the Scottish Ministers must, subject to a derogation, declare a wild bird control area and a wild bird monitoring area (articles 5, 6 and 7) (article 5(4) sets out the exception to the requirement to make a declaration). Article 8 sets out the measures to apply in such areas by reference to the Schedules, and the circumstances in which the Scottish Ministers can amend a declaration to disapply certain measures in those areas. Article 9 provides that the Scottish Ministers may impose additional measures to those set out in the Schedules. Article 12 sets out the circumstances in which the Scottish Ministers can either amend a declaration of a wild bird control area so that it becomes part of the wild bird monitoring area or revoke the declaration of either area. The Scottish Ministers must ensure that veterinary inspectors inspect commercial premises in a wild bird control area or a wild bird monitoring area to monitor the spread of avian influenza (article 11). Articles 13 to 23 relate to record keeping, cleansing and disinfection, provision of reasonable assistance and powers of inspectors. Schedule 1 sets out the measures that are to apply in respect of a wild bird control area including measures relating to the movement of birds (Part 1), the movement of hatching eggs and SPF eggs (Part 2), the movement of controlled meat (Part 3), the movement of by products (Part 4) and the use or movement of manure, the hunting or release of birds and bird gatherings (Part 5) and other provisions relating to the measures to be taken at premises receiving birds or their products from the area. Schedule 2 sets out the measures that are to apply in respect of a wild bird monitoring area including measures relating to the movement of birds and prohibitions on bird gatherings and the hunting or release of 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 control area or a wild bird monitoring area. This Order is enforced by the local authority (article 24). This Order revokes the Avian Influenza (H5NI in Wild Birds) (Scotland) Order 2006 (article 25). Failure to comply with this Order is an offence under section 73 of the Animal Health Act 1981 (c. 22), punishable in accordance with section 75 of that Act. No Regulatory Impact Assessment has 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