UK Offence Report

Powers of entry

regulation 6(7) of The Bananas (Enforcement of Quality Standards) (Scotland) Regulations 2011 (revoked)

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

7 It is an offence for

a person who has obtained confidential information in the course of acting for the purposes of the enforcement of these Regulations to disclose that information, whether it was obtained on premises entered under or by virtue of these Regulations or otherwise, unless the disclosure is made in the performance of that person’s duty or in accordance with section 17(2) of the Anti-terrorism, Crime and Security Act 2001.

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 This is the text as originally made; later amendments are not shown here.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
Legal burden on the defendant

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 gives a defence the defendant must prove, on the balance of probabilities. A legal burden of that kind can be read down to a merely evidential one under section 3 of the Human Rights Act 1998 where placing it on the defendant would be disproportionate (R v Lambert [2001] UKHL 37; Sheldrake v DPP [2004] UKHL 43).

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

The defence, as drafted

18 1 Except in respect of the offences in regulation 16, it is a defence for a person charged with an offence under these Regulations (“C”) to prove that his or her actions were carried out with lawful authority or that he or she took all reasonable precautions and exercised all due diligence to avoid committing the offence. 2 Where C wishes to rely on the defence in paragraph (1), C must serve on the pro

What would breach regulation 6(7)?

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 Bananas (Enforcement of Quality Standards) (Scotland) Regulations 2011.

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
7 September 2011
In force from
10 October 2011
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 provide for the enforcement of the EU banana quality standards as provided for in Article 113 of Council Regulation (EC) No 1234/2007 (O.J. L299, 16.11.2007, p.1) establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation), and contained in Commission Regulation (EC) No. 2257/94 laying down quality standards for bananas (O.J. L245, 20.9.1994, p.6) as read with Commission Regulation (EC) 2898/95 concerning verification of compliance with quality standards for bananas (O.J. L304, 16.12.1995, p.17). These Regulations disapply (see regulation 21) in so far as they apply to Scotland the Agriculture and Horticulture Act 1964, the Horticultural Produce Act 1986 which modifies the 1964 Act, the Agricultural Produce (Grading and Marking) Acts 1928 and 1931 and the Agricultural Marketing Act 1958 from the EU banana quality standards. They designate the Scottish Ministers as competent national authority and inspection body in Scotland and provide for the Scottish Ministers to provide and request information and to appoint authorised officers (regulation3). The Regulations make the failure to comply with the EU banana quality standards an offence. They contain additional offences necessary for the effective enforcement of the EU banana quality standards (regulation 4 and Schedule1). The Regulations confer on authorised officer powers of entry (regulation 6) and other powers, including seizure powers (regulation 7) in relation to premises other than dwelling houses (regulation 5). They also contain powers to affix non compliance labels indicating various types of non-conformity with the EU quality standards for bananas (regulations 9, 10 and 11). These labels must contain the information set out in Schedule2 (Parts I and II). Regulation12 confers power on authorised officers to prohibit the movement of bananas and gives a right of review to those served with a written notice informing of the exercise of that power. Regulation13 confers power to affix a stop notice label warning of the exercise of power in regulation 12, which must contain the information set out in Schedule2 (Parts III and IV). Regulation14 makes provision for giving consent by authorised officers to the movement of controlled bananas where certain conditions are met. Regulations 15, 16, 17 and 19 respectively contain provisions on offences relating to controlled bananas, to the obstruction of an authorised officer, to the commission of an offence due to the fault of another person and to the commission of offences by bodies corporate etc. Regulation 18 provides for defences of acting with lawful authority or exercising due diligence and taking reasonable precautions. Regulation 20 provides that the penalty for offences is on summary conviction a fine not exceeding level 5 on the standard scale. No Business and Regulatory Impact Assessment has been prepared for this instrument as it has no impact on the cost of business in Scotland.

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 0.90.

Basis
the provision says “it is an offence”; the provision says an offence is committed “if” something happens
Confidence
0.90 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