UK Offence Report

Grounds on which recognition may be refused

paragraph 7(1) of SCHEDULE 2 of The Mutual Recognition of Supervision Measures in the European Union (Scotland) Regulations 2014 (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

1 Under paragraph 4(1), the sheriff—

a must refuse to recognise

a decision on supervision measures if the certificate referred to in paragraph 3(7)(b) includes

a measure which is not of

a type mentioned in Article 8(1) of the Framework Decision; and

b may refuse to recognise

a decision on supervision measures (in

a case where refusal is not required by head (a)) only if—

i the certificate referred to in paragraph 3(7)(b) is incomplete or obviously does not correspond to the decision;

ii the sheriff is not satisfied that the person to whom the decision relates is ordinarily and lawfully resident in the United Kingdom (but see sub-paragraph (2));

iii the sheriff is not satisfied that the person to whom the decision relates has— aa been informed about the supervision measures contained in the decision; and bb consented to come to the United Kingdom;

iv the sheriff is not satisfied that the proceedings in which the decision was issued do not contravene the ne bis in idem principle;

v the double criminality exception set out in sub-paragraph (3) applies;

vi the decision has been issued in proceedings in respect of an alleged act or omission— aa that constitutes an offence in Scots law; and bb for which the person to whom the decision relates could not, by virtue of an enactment, be prosecuted in Scotland;

vii the decision has been issued in proceedings in respect of an alleged act committed or omission made by the person to whom the decision relates when that person was under the age mentioned in section 41 (age of criminal responsibility) of the Criminal Procedure (Scotland) Act 1995;

viii the person to whom the decision relates enjoys

a legal immunity that would make monitoring the person’s compliance with the supervision measures impossible;

ix the person to whom the decision relates could not be extradited under Part

1 of the Extradition Act 2003 for breaching the supervision measures contained in the decision;

x the sheriff has cause to believe that the supervision measures contained in the decision were imposed to punish the person to whom the decision relates on account of the person’s gender, race, religion, ethnic origin, nationality, language, political convictions or sexual orientation or will disadvantage the person due to one of those characteristics.

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
contravening a requirement of the instrument
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 paragraph 7(1) of SCHEDULE 2?

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 the thing the provision prohibits under the Mutual Recognition of Supervision Measures in the European Union (Scotland) Regulations 2014, whatever the reason for doing it.
  2. Where the requirement is a positive duty, letting the time for performing it pass without performing it.

Penalty

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

no penalty is stated in this instrument; it may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence.

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
1 December 2014
In force from
1 December 2014
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 give effect in Scotland to the European Union Framework Decision on mutual recognition of decisions on supervision measures as an alternative to provisional detention. In Scots law terms, supervision measures as an alternative to provisional detention means pre-trial bail. Schedule 1 deals with cases where a Scottish court requests that another EU member State monitor bail conditions imposed in Scotland while the accused person subject to the conditions is in the other State’s territory. Conversely, Schedule 2 deals with cases where another EU member State requests that a person’s compliance with supervision measures imposed in that other State is monitored while the person is 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 0.75.

Basis
the provision says the conduct “constitutes an offence”
Confidence
0.75 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