UK Offence Report

Substitution of Part II of the 2010 Regulations

regulation 3 of The Flood Risk Management (Flood Protection Schemes, Potentially Vulnerable Areas and Local Plan Districts) (Scotland) Amendment Regulations 2017

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

Offence: provision of false etc. information 10D

1 A person commits an offence if that person, for the purpose of procuring

a particular decision under this Part or under schedule

2 of the Act in connection with

a proposed scheme,

a modified scheme, or an EIA report (including its scope and content)—

a knowingly or recklessly makes

a statement which is false or misleading in

a material particular;

b with intent to deceive, uses any document which is false or misleading in

a material particular; or

c with intent to deceive, withholds any material information.

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 This is the text as originally made; later amendments are not shown here.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
making a false or misleading statement
Fault element
Requires proof of a state of mind
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove both that the conduct happened and that it was done with the state of mind the provision names (knowingly, knowingly or recklessly, recklessly, with intent to).

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: mens rea word in the offence-creating words: knowingly, with intent to, recklessly, knowingly or recklessly.

What would breach regulation 3?

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. Entering a figure on a form or return that is known to be wrong under the Flood Risk Management (Flood Protection Schemes, Potentially Vulnerable Areas and Local Plan Districts) (Scotland) Amendment Regulations 2017.
  2. Leaving out something the form asks for, where the omission is what makes the answer misleading.
  3. Producing a document to an official that has been altered since it was issued.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
£10,000
Maximum prison (summary)
Not determined

expressed as the statutory maximum (the prescribed sum): the same words mean £5,000 in England and Wales and £10,000 in Scotland.

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
11 April 2017
In force from
16 May 2017
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 amend the Flood Risk Management (Flood Protection Schemes, Potentially Vulnerable Areas and Local Plan Districts) (Scotland) Regulations 2010 (“the 2010 Regulations”). The amendments to the 2010 Regulations are pursuant to the implementation, in relation to flood protection schemes, of Directive 2011/92/EU of the European Parliament and of the Council on the assessment of the effects of certain public and private projects on the environment (OJ L 26, 28.1.2012, p.1), as amended by Directive 2014/52/EU of the European Parliament and of the Council (OJ L 124, 25.4.2014, p.1) (“the Directive”). Section 60 of the Flood Risk Management (Scotland) Act 2009 (“the Act”) makes provision in relation to flood protection schemes. A flood protection scheme is a scheme by a local authority for the management of flood risk within the local authority’s area. A proposed flood protection scheme must, among other things, contain a description of the operations the local authority proposes to carry out. Schedule 2 of the Act makes further provision about the making of flood protection schemes, including provision in relation to the confirmation of such schemes by either the local authority or, in certain circumstances, the Scottish Ministers. Section 57(2B) of the Town and Country Planning (Scotland) Act 1997 provides that, on the confirmation of any such scheme, the Scottish Ministers must direct that planning permission for any scheme operations which would constitute development be deemed to be granted, subject to such conditions (if any) as may be specified in the direction. These Regulations supplement the provisions in section 60 and schedule 2 of the Act to ensure that, where any such scheme contains a description of operations which constitute a project in Annex I or II of the Directive, the requirements of the Directive are met. In particular— regulations 3, 5 and 6 (together with schedules 1 and 2 of these Regulations) replace the provisions in Part II of the 2010 Regulations and also schedules 1 and 2 (which all relate to environmental impact assessment), with new provisions relating to environmental impact assessment which are updated to take account of the amendments made to the Directive by Directive 2014/52/EU, regulation 2 inserts definitions into Part I of the 2010 Regulations for certain words and expressions used in the new provisions inserted by regulation 3; and makes some other consequential revisions to the existing definitions, and regulation 4 amends some of the provisions in Parts III and IV of the 2010 Regulations, in consequence of the changes made to those Regulations by regulation 2 and 3. The 2010 Regulations, as amended by these Regulations, ensure that where a flood protection scheme requires to be subject to an environmental impact assessment, that this assessment is carried out and that it is taken into account before any decision is taken to confirm any such scheme. No business and regulatory impact assessment has been prepared for these Regulations as no additional impact upon business, charities or voluntary bodies is foreseen.

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 0.92.

Basis
the provision says a person “commits an offence”
Confidence
0.92 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