UK Offence Report

Implementation of a recognised European Protection Order

regulation 254D(7)(b) of The European Protection Order (Scotland) Regulations 2015 (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

b that a breach of the non-harassment order is an offence under section 234A(4);

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 This is the text as originally made; later amendments are not shown here.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 regulation 254D(7)(b)?

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 European Protection Order (Scotland) Regulations 2015, 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
10 March 2015
In force from
11 March 2015
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, in part, Directive 2011/99/EU of the European Parliament and of the Council on the European Protection Order. They extend to Scotland only. Regulation 2 adds five new sections to the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) so as to allow Scottish courts to issue a European Protection Order (“EPO”) and to recognise and implement an EPO issued in another member state of the European Union. New section 254A to be added to the 1995 Act provides a number of definitions for the terms used in sections 254A to 254E. A “protected person” is an individual who is the object of the protection given by a protection measure and a “protection measure” involves the imposition of certain prohibitions or restrictions on the conduct of one individual in order to protect another individual. The issuing state is the member state of the European Union whose competent authority issues the EPO and the executing state is the member state of the European Union in which the protected person resides or stays or intends to reside or stay. New section 254B to be added to the 1995 Act allows the court to issue an EPO on the application of a protected person or their authorised representative. The court must be satisfied that a protection measure imposed in Scotland is in force and that the protected person either resides or stays, or has decided to reside or stay, in the executing state. Subsection (3) provides two matters which the court must take into account in deciding whether to issue an EPO. Subsection (4) obliges the court to inform the protected person if the application for an EPO is refused. Subsection (5) obliges the court, once it has issued an EPO, to transmit the EPO to the competent authority of the executing state. Subsection (6) obliges the court to modify or revoke the EPO and inform the executing state if the protection measure imposed in Scotland is modified or revoked. New sections 254C, 254D and 254E to be added to the 1995 Act cater for the situation where an EPO is received by a sheriff. New section 254C deals with the recognition of an incoming EPO. Subsection (2) obliges the sheriff to recognise the EPO unless one of the grounds for refusal specified in subsection (3) apply. Subsection (4) obliges the sheriff to request further information from the competent authority of the issuing state where the sheriff considers the EPO to be incomplete. Subsection (5) provides for the competent authority of the issuing state and the protected person to be informed of a decision to refuse to recognise the EPO. New section 254D deals with the implementation of an EPO once it has been recognised under section 254C. Subsection (1) provides that, where an EPO has been recognised by a sheriff, the sheriff must make a non-harassment order (NHO) in relation to the offender. Subsection (2) applies section 234A(4) to NHOs made under subsection (1) subject to the restrictions on the maximum penalties in paragraph 1(1)(d) of Schedule 2 to the European Communities Act 1972. Subsection (3) applies section 234A(4A) and (4B) to NHOs made under subsection (1). Subsection (4) places some restrictions on the requirements as to the offender’s behaviour which may be contained in the NHO. Subsection (5) specifies two matters which the sheriff must consider when considering which requirements to impose on the offender in the NHO. Subsections (6) and (7) place an obligation on the sheriff to provide certain information to the offender, the competent authority of the issuing state and the protected person where it makes an NHO under subsection (1). Subsection (8) places an obligation on a court which convicts the offender of a breach of an NHO made under subsection (1) to inform the competent authority of the issuing state. New section 254E to be added to the 1995 Act provides powers and duties for sheriffs to revoke or modify an NHO made under section 254D(1). Subsection (2) provides powers by which the NHO can be modified or revoked in response to a modification of the EPO to which the non-harassment order relates. Subsection (3) creates a process by which the offender can apply to a sheriff for a modification of the NHO. Subsection (4) obliges a sheriff to revoke the NHO where the sheriff is informed by the competent authority of the issuing state that the EPO to which the NHO relates has been revoked or withdrawn. Subsection (5) creates a process by which the offender can apply to a sheriff for a revocation of the NHO. Subsection (6) obliges the sheriff to inform the issuing state and, where possible, the protected person and the offender where the NHO is modified or revoked under section 254E.

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