UK Offence Report

Offences relating to enforcement officers

regulation 23(1) of The Energy Performance of Buildings (Scotland) Regulations 2008

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 A person who obstructs an authorised officer of an enforcement authority acting in pursuance of regulation

16 is guilty of 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 This is the text as originally made; later amendments are not shown here.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
a person
Conduct
obstructing an official exercising a power
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 regulation 23(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 person obstructs an authorised officer of an enforcement authority acting in pursuance of regulation 16.
  2. Refusing to let an inspector onto premises they are entitled to enter under the Energy Performance of Buildings (Scotland) Regulations 2008.
  3. Sending an official away, or telling staff to say nothing, where the power being exercised does not depend on anyone's consent.
  4. Physically blocking an examination, or removing something an officer has said they intend to inspect.

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
16 September 2008
In force from
4 January 2009
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 further transpose Article 7 (energy performance certificates), Article 3 (adoption of a methodology) and partially transpose Article 4(3) of Directive 2002/91/EC of the European Parliament and of the Council (“the Directive”) in Scotland. The Directive lays down requirements for the production of energy performance certificates when buildings are to be sold or rented out. The Regulations also provide for the display of certificates in public buildings. The term “building” is defined in Article 2 of the Directive. Regulation 5 imposes a duty on the owner of a building to make an energy performance certificate available to prospective buyers or tenants where the building is to be sold or let. The requirements of an energy performance certificate are set out in regulation 6. The Scottish Ministers must approve a method of calculation of the energy performance of buildings and may approve organisations whose members may issue energy performance certificates (regulations 7 and 8). The owner or occupier of a public building is required, under regulation 9, to ensure that an energy performance certificate is displayed within the building in a place clearly visible to members of the public. Regulation 10 provides that the Scottish Ministers or a person appointed by them must maintain one or more registers of energy performance certificates, which must be sent to the relevant register before being issued. Regulations 11 to 14 regulate the disclosure of information contained in the register. Local authorities have powers under regulation 15(2) to enforce the Regulations and under regulation 16 to require production of energy performance certificates. Under regulation 17 a penalty charge notice may be served on owners of buildings who contravene the requirement to make an energy performance certificate available. The penalty is– a £500 for dwellings or buildings ancillary to dwellings; and b £1,000 in any other case. Regulations 18 and 19 deal with defences to and review of penalty charge notices. Regulation 20 deals with appeals to the sheriff. Regulation 21 deals with recovery of penalty charges. Regulation 22 deals with service of documents. Regulation 23 makes it an offence to obstruct an authorised officer of an enforcement authority or to purport to act as an authorised officer. A Transposition Note setting out how these Regulations transpose the Directive and a Regulatory Impact Assessment have been prepared and placed in the Scottish Parliament Information Centre. Copies can be obtained from the Building Standards Division, Directorate for the Built Environment, Ground Floor, Denholm House, Almondvale Business Park, Almondvale Way, Livingston, West Lothian, EH54 6GA.

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