UK Offence Report

Restrictions relating to things moved from England, Wales or Northern Ireland

article 4(2) of The Avian Influenza (H5N1 in Poultry) (Scotland) Order 2007

The provision has been revoked and no saving provision preserving liability for earlier conduct was found.

What the provision says

2 No person shall be guilty of an offence by virtue of paragraph (1) unless the person to whom the measure applies is aware or should reasonably have been aware that the thing moved is from such an equivalent zone.

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 This is the text as originally made; later amendments are not shown here.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

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 article 4(2)?

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 what the provision prohibits, or failing to do what it requires under the Avian Influenza (H5N1 in Poultry) (Scotland) Order 2007.

Penalty

Mode of trial
Not determined
Maximum fine
Not determined
Maximum prison (summary)
Not determined

no penalty is stated in this instrument; it may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence.

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 Animal Health and Welfare and Official Controls (Animals, Feed and Food) (EU Exit) (Scotland) (Amendment) Regulations 2019
Made
8 February 2007
In force from
15 February 2007
Extent
S

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 transposes Commission Decision 2006/415/EC concerning certain protection measures in relation to highly pathogenic avian influenza of subtype H5N1 in poultry in the Community and repealing Decision 2006/135/EC (O.J. No. L 164, 16.6.2006, p.51) (“the Commission Decision”). It also specifies the health mark, and the alternative health mark pursuant to Council Directive 2002/99/EC laying down the animal health rules governing the production, processing, distribution and introduction of products of animal origin for human consumption (O.J. No. L 18, 23.1.2003, p.11), 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. The Order supplements the general measures to control avian influenza set out in the Avian Influenza and Influenza of Avian Origin in Mammals (Scotland) Order 2006 (S.S.I. 2006/336) (“the main Order”). Measures to control highly pathogenic avian influenza of subtype H5N1 in wild birds are set out in the Avian Influenza (H5N1 in Wild Birds) (Scotland) Order 2007 (S.S.I. 2007/61). Article 5 specifies which zones declared under the main Order are zones A and B for the purposes of the Commission Decision. Article 6 requires the Scottish Ministers to declare temporary control zones or temporary movement restriction zones under the main Order if highly pathogenic avian influenza of subtype H5N1 is suspected in poultry. Article 7 relates to the location and size of such zones. Article 8 requires the Scottish Ministers to declare a restricted zone under the main Order on confirmation of highly pathogenic avian influenza of subtype H5N1 in poultry. The general measures which may be imposed on suspicion and confirmation of highly pathogenic avian influenza of sub-type H5N1 are set out in the main Order. Additional measures in articles 9 to 14 of this Order restrict movements of the following: a poultry and other captive birds from restricted zones (article 9); b hatching eggs from restricted zones (article 10); c wild game bird products from protection, surveillance and restricted zones (articles 11 to 13); d by-products from any bird in a protection, surveillance or restricted zone (article 14). Article 15 bans bird gatherings in restricted zones. Articles 16 to 24 contain measures relating to enforcement of the Order. The Schedule sets out the mark to be applied to meat and meat products from wild game birds from protection, surveillance and restricted zones. A breach of this Order is an offence under section 73 of the Animal Health Act 1981, punishable under section 75 of that Act. A Regulatory Impact Assessment has not been prepared for this Instrument. The measures complement closely those of the main Order, for which a full RIA was prepared. It is available from the Scottish Executive Environment and Rural Affairs Department, Pentland House, 47 Robb’s Loan, Edinburgh EH14 1TY.

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