UK Offence Report

Amendment of the Animal By-Products (Scotland) Regulations 2003

regulation 2(3) of The Animal By-Products (Scotland) Amendment 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

3 In regulation 5 (category

2 material), before paragraph (2) insert– 1A Any person who possesses or has any control over Category

2 material and who fails to comply with Article 5(2), Article 5(3) or Article 5(4) (other than the provision in Article 5(4) relating to export) of the Community Regulation 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 This is the text as originally made; later amendments are not shown here.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
importing or exporting without authority
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 2(3)?

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 fails to comply with Article 5(2), Article 5(3) or Article 5(4) (other than the provision in Article 5(4) relating to export) of the Community Regulation.
  2. Moving the goods across the border under the Animal By-Products (Scotland) Amendment Regulations 2009 without the licence the instrument requires.
  3. Holding a licence for one consignment and using it for another.
  4. Sending goods in transit through the United Kingdom, where the provision catches transit as well as import and export.

Penalty

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

no penalty is stated here: this instrument amends another one, and the penalty for the offence is in the instrument being amended.

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
14 January 2009
In force from
13 February 2009
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 Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations amend the Animal By-Products (Scotland) Regulations 2003 (the “ABP Regulations”). The ABP Regulations make provision in Scotland for the administration and enforcement of Regulation (EC) No. 1774/2002 of the European Parliament and of the Council laying down health rules concerning animal by-products not intended for human consumption (O.J. No. L 273, 10.10.2002, p.1) (“the Community Regulation”). The ABP Regulations implement so far as necessary the Community obligations regulating what may be done in relation to such products. Regulation 2(2) of these Regulations inserts an amended definition of the Community Regulation taking account of changes to that instrument since the coming into force of the ABP Regulations. The amended definition provides for a reference to the Community Regulation in the ABP Regulations to be read as a reference to the text of the Community instrument as amended from time to time. The definition therefore encompasses amendments which may be made in the future, and an “as amended” version of the Community Regulation can be found at any time on the Eur-Lex website (http://eur-lex.europa.eu/en/index.htm). Regulation 2(3) and (5) of these Regulations corrects an omission in the ABP Regulations, caused by an error in the Transmissible Spongiform Encephalopathies (Scotland) Regulations 2006 (S.S.I. 2006/530) (the “2006 TSE Regulations”). Regulation 51(1) of and Part 1 of Schedule 5 to the ABP Regulations as originally made amended the Transmissible Spongiform Encephalopathies (Scotland) Regulations 2002 (S.S.I. 2002/255) (the “2002 TSE Regulations”) so that the 2002 Regulations complied with the provisions in the Community Regulation relating to TSE. The 2006 TSE Regulations revoked and remade, with amendments, the 2002 TSE Regulations. The 2006 TSE Regulations implemented the Community Regulation so far as applicable, so the amendments to the 2002 TSE Regulations made by regulation 51(1) of, and Part 1 of Schedule 5 to, the ABP Regulations were no longer needed, and could be revoked. Due to an error the 2006 TSE Regulations revoked regulation 5(1) of the ABP Regulations rather than regulation 51(1). These Regulations correct the omission in the ABP Regulations caused by the error in the 2006 TSE Regulations, and complete the consequential amendment to the ABP Regulations begun by the 2006 TSE Regulations, by– a providing that it is an offence for any person in possession or control of Category 2 Material to fail to comply for certain purposes with Articles 5(2) to 5(4) of the Community Regulation (regulation 2(3)); and b revoking regulation 51(1) of the ABP Regulations (regulation 2(5)). Category 2 Material is as defined in regulation 2(2) of the ABP Regulations, and as described in Article 5 of the Community Regulation. Regulation 2(4) of these Regulations replaces paragraphs (3) to (5) of regulation 9 of the ABP Regulations, which provides for access to animal by-products, with the effect that under– a regulation 9(3) and (4), animal by-products may be brought onto premises where certain animals are present, and where there is any of a petfood plant that came into operation after 1st November 2002, a Category 3 intermediate plant, a technical plant, or a plant where the by-product is used for educational, research or diagnostic purposes; b regulation 9(5), no animal other than a wild bird may have contact with compost applied to land in accordance with regulation 16 of the ABP Regulations. Breach of the ABP Regulations is an offence punishable under regulation 48 of those Regulations. A regulatory impact assessment has not been prepared for these Regulations.

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