UK Offence Report

Contravention of The Drinking Milk (Scotland) Regulations 2011

the instrument as a whole of The Drinking Milk (Scotland) Regulations 2011

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

Contravening this instrument is an offence under sections 10(2), 33 and 35 of the Food Safety Act 1990. The instrument itself contains no offence-creating words.

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 This is the text as originally made; later amendments are not shown here.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
selling or supplying something the instrument restricts
Fault element
Strict liability
Burden of proof
Not determined

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.

Classifier’s reasoning: contravention offences of this kind are strict as to the breach; the fault position is governed by the parent Act and was not read from it.

What would breach the instrument as a whole?

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. Selling the goods under the Drinking Milk (Scotland) Regulations 2011 where the instrument prohibits the sale outright.
  2. Supplying without carrying out a check the instrument requires first, even where the sale would otherwise be lawful.
  3. Offering for sale counts as well as selling: displaying stock is enough where the provision reaches an offer.

Penalty

Mode of trial
Set by another provision — the instrument states the penalty by reference to an Act or to another regulation
Maximum fine
Not determined
Maximum prison (summary)
Not determined

The instrument does not state a penalty itself. It sets one by reference to sections 10(2), 33 and 35 of the Food Safety Act 1990.

the penalty is in the parent Act, not in this instrument.

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
9 February 2011
In force from
1 April 2011
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 make provision for the enforcement of Article 114(2) of, and Annex XIII (“the Annex”) to, Council Regulation (EC) No 1234/2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (“the Single CMO Regulation”). The Drinking Milk Regulations 1998 are revoked (regulation 10). The Drinking Milk Regulations 1998 enforced Council Regulation (EC) No2597/97 laying down additional rules on the common organisation of the market in milk and milk products for drinking milk (O.J.L351, 23.12.97, p.13). That Regulation was amended by Council Regulation (EC) No1602/1999 (O.J. L189, 22.7.99, p.43) and by Council Regulation (EC) No1153/2007 (O.J.L258, 4.10.07, p.6) and then repealed by the Single CMO Regulation. The Single CMO Regulation consolidated the old EU law, including the new provision from Council Regulation (EC) No1153/2007 which allows milk with a fat content outwith the three set fat categories, whole milk, semi-skimmed and skimmed milk, to be marketed subject to the correct labelling and the deletion made by Council Regulation (EC) No 1602/1999 in relation to fat content requirement. These Regulations provide that the sale or delivery of milk and the use or non-use of a sales description for any product in contravention of the Annex is prohibited (regulation 3). The importation of any product from outside the EU in contravention of point IV of the Annex is also prohibited (regulation 4). Provision is made for enforcement and offences and penalties (regulations 5 and 6). Certain provisions of the Food Safety Act 1990 are applied for the purposes of these Regulations with certain modifications (regulation7) including the application of section 32 (power of entry) in order to assist with the enforcement of these Regulations. Certain amendments are made to the Food Labelling Regulations 1996 to replace the definitions of semi-skimmed, skimmed and whole milk and to insert a definition of the Single CMO Regulation (regulation 8). Certain amendments are made to the Milk and Dairies (Scotland) Regulations 1990 to update a definition to the Single CMO Regulation (regulation 9). These Regulations provide that references in these Regulations to Article 114(2) and the Annex of the Single CMO Regulation are references to those provisions as amended from time to time. Any amendments to these provisions will be published on the Europa website, (http://europa.eu/documentation/legislation/index_en.htm). Additionally the Scottish Government will publish relevant information on the Scottish Government website (www.scotland.gov.uk) and updates will be sent to interested parties where considered appropriate. The definition of the Single CMO Regulation to be inserted into the Food Labelling Regulations 1996 and the amendment to the Milk and Dairies (Scotland) Regulations 1990 referring to the Single CMO Regulation, however, are not ambulatory references to the Single CMO Regulation as amended from time to time. A Business and Regulatory Impact Assessment has not been produced for this instrument as there will be no cost to business.

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 0.59.

Basis
the penalty comes from the enabling Act rather than from this instrument
Confidence
0.59 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