UK Offence Report

Allocation of costs

regulation 18(4) of The Environmental Liability (Scotland) Regulations 2009

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

4 Failure by an operator to comply with the requirements of paragraph(3) without reasonable excuse is 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 This is the text as originally made; later amendments are not shown here.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 operator
Conduct
breaching the provision
Fault element
Strict liability
Burden of proof
An element of the offence, for the prosecution to prove

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 operator 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.

“Without reasonable excuse” here is an element of the offence rather than a defence, so its absence is for the prosecution to prove (R v Charles [2009] EWCA Crim 1570).

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision; qualified by reasonable excuse (an element; prosecution disproves once raised).

The defence, as drafted

an operator to comply with the requirements of paragraph(3) without reasonable excuse is an offence.

What would breach regulation 18(4)?

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 Environmental Liability (Scotland) Regulations 2009.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
£10,000
Maximum prison (summary)
Not determined

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
23 June 2009
In force from
24 June 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 implement Directive2004/35/CE of the European Parliament and Council on environmental liability with regard to the prevention and remedying of environmental damage. They apply to environmental damage to protected species, natural habitats, water and land (regulation4). They provide that, for certain economic activities, where there is an imminent risk of environmental damage, the responsible operator must take steps to prevent it. If environmental damage has occurred the responsible operator must prevent further damage (regulations10 to12). Competent authorities are designated and these bodies have certain duties and powers (regulations7 to 12, 14, 15, 17 and18). The Regulations provide for interested parties being able to request a competent authority to take action in certain circumstances (regulation14). The Regulations make provision as to who bears the costs of carrying out any preventive or remedial measures (regulation17). Breach of certain provisions of the Regulations is an offence punishable either on summary conviction or indictment (regulation19). The Schedules to the Regulations set out the occupational activities covered (Schedule1), supplementary provisions in respect of powers of entry (Schedule2), remediation measures (Schedule3), and compensation provisions in relation to grants of entry (Schedule4). A Transposition Note and Partial Regulatory Impact Assessment (RIA) have been prepared in connection with these Regulations and placed in the Scottish Parliament Information Centre. Copies of the RIA can be obtained from the Scottish Government, Enterprise and Industry Division, Meridian Court, Cadogan Street, Glasgow, G2 6AT. Copies of the Transposition Note can be obtained from the Scottish Government, Environmental Quality Directorate, Victoria Quay, Edinburgh, EH66QQ.

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 an offence is committed “if” something happens
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