UK Offence Report

1 It is an offence for a database operator to— a fail to comply with regulation 8; or b fail to comply with…

regulation 13(1) of The Microchipping of Dogs (Scotland) Regulations 2016

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 It is an offence for

a database operator to—

a fail to comply with regulation 8; or

b fail to comply with

a notice served on it under regulation 9(1).

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 This is the text as originally made; later amendments are not shown here.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
an database operator
Conduct
failing to comply with a notice or direction
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 an database operator 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 13(1)?

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. Being served with a notice under the Microchipping of Dogs (Scotland) Regulations 2016 and doing nothing by the date it specifies.
  2. Doing part of what the notice requires, where it required all of it.
  3. Disagreeing with the notice and ignoring it, rather than using whatever appeal the instrument provides.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
£2,500
Standard scale
Level 4
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
28 January 2016
In force from
29 January 2016
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 provide for the compulsory microchipping of dogs in Scotland and the recording of information about every dog and its keeper on a database. They set a technical standard for the type of microchip which must be used for the purposes of microchipping a dog under these Regulations. In addition, the Regulations also make wider provision about who may implant a microchip of any kind in a dog in Scotland. Regulation 3 sets out the persons who may implant microchips of any kind. Any other person who implants a dog with a microchip commits an offence under regulation 13(4). Regulation 4 sets out the technical standard which microchips must meet if they are to be used for the purposes of the Regulations. These are referred to as compliant microchips. It is an offence under regulation 13(4) for an implanter to hold out that a microchip is a compliant microchip where the implanter knows or could reasonably be expected to know that the microchip is not a compliant microchip. Regulation 5 requires anyone who identifies an adverse reaction, migration or failure in a microchip to notify the Scottish Ministers. Failure to report without reasonable excuse is an offence under regulation 13(3). Regulations 3 to 5 come into force the day after the day on which the Regulations are made. Regulation 6 requires that from 6th April 2016 every keeper of a dog has its dog microchipped. Microchipped means having the dog both implanted with a compliant microchip and the details set out in regulation 7 being recorded by a database operator. Where a veterinary surgeon certifies that the dog should not be microchipped due to the dog’s health then the obligation does not apply for the period specified in the certificate. Regulation 6(4) provides that if a person brings a dog into Scotland then they must have it microchipped within 30 days of bringing it to Scotland. Regulation 6(7) requires the keeper of a dog to notify any change to the details recorded on the database. Regulation 6(8) provides that if a keeper becomes aware of a failure of a microchip in their dog, the keeper must have the dog re-microchipped. Regulation 7 sets out the information to be notified to a database operator by the keeper of a dog who has had the dog implanted with a compliant microchip. Offences are provided in regulation 13(5)(a) and (b) in respect of false notifications. Regulation 8 lists the conditions with which a person holding itself out as a database operator must comply. If a database operator holds itself out as complying with this regulation then it will be a database operator for the purposes of the Regulations and thereby bound to comply with the conditions. Failure to comply with the conditions listed in regulation 8 is a criminal offence by virtue of regulation 13(1)(a). Regulation 9 gives the Scottish Ministers the power to require database operators to provide information to show the operator is complying with its obligations under regulation 8. It also permits the Scottish Ministers to be given statistical information from a database. Where a database operator is no longer complying with its regulation 8 obligations then the Scottish Ministers may issue a notice requiring the operator to cease holding itself out as regulation 8 compliant and may require the data to be passed to the Scottish Ministers or to another database operator who does comply. Notices may not come into effect before the period for appealing against them has expired. Regulation 10 provides that when a dog is transferred to a new keeper the new keeper must notify their details to the database. It also provides that before a dog may be transferred it must have been microchipped and the current keeper’s details be correct. Regulation 12 gives authorised persons the power to take possession of a dog for the purposes of checking if it has been microchipped and that the microchip is working; and if not, to serve a notice on a keeper to require them to rectify the situation within 21 days. If a keeper fails to comply with a notice within 21 days, the authorised person may take possession of the dog without the keeper’s consent to arrange for the dog to be microchipped and may recover the cost of doing so from the keeper. Failure to comply with a notice or intentional obstruction of a person exercising their powers under regulation 12 is an offence under regulation 13(5)(d) and (e). Regulation 13 sets out the offences provided by these Regulations and the maximum fines payable. Regulation 14 provides for appeals to a sheriff against various notices issued under the Regulations. Notices are suspended pending determination or withdrawal of the appeal. A draft of these Regulations was notified on 24th July 2015 to the European Commission in accordance with the Technical Standards Directive (Directive 98/34/EC as amended by Directive 98/48/EC). A full impact assessment of the effect that this instrument will have on the costs of business and the voluntary sector is published on the Scottish Government website (http://www.gov.scot).

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