UK Offence Report

Amendment of the Wildlife and Countryside Act 1981

regulation 2(2) of The Conservation (Natural Habitats, &c.) (Miscellaneous Amendments) (Scotland) Regulations 2019

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

2 After section 14A (prohibition on sale etc. of invasive animals or plants) insert— Contravention of Invasive Alien Species Regulation 14AA

1 A person commits an offence under this section if—

a the person contravenes

a paragraph of Article 7(1) of the Invasive Alien Species Regulation mentioned in subsection (2) in relation to an invasive alien species, and

b the activity which constitutes that contravention does not constitute an offence under section 14, 14ZC or 14A.

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 This is the text as originally made; later amendments are not shown here.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
Legal burden on the defendant

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 gives a defence the defendant must prove, on the balance of probabilities. A legal burden of that kind can be read down to a merely evidential one under section 3 of the Human Rights Act 1998 where placing it on the defendant would be disproportionate (R v Lambert [2001] UKHL 37; Sheldrake v DPP [2004] UKHL 43).

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

The defence, as drafted

tting an offence under this section to show that the person took all reasonable steps and exercised all due diligence to avoid committing the offence. 4 Where the defence provided by subsection (3) involves an allegation that the commission of the offence was due to the act or omission of another person, the person charged must not, without leave of the court, be entitled to

What would breach regulation 2(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 Conservation (Natural Habitats, &c.) (Miscellaneous Amendments) (Scotland) Regulations 2019, 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
Either way — magistrates’ court or Crown Court
Maximum fine
£5,000
Standard scale
Level 5
Maximum prison (summary)
1 year
Maximum prison (on indictment)
2 years

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
31 October 2019
In force from
Not determined
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 primarily amend the Wildlife and Countryside Act 1981 (“the 1981 Act”) to further implement Regulation (EU) No 1143/2014 of the European Parliament and of the Council on the prevention and management of the introduction and spread of invasive alien species (“the Invasive Alien Species Regulations”). These Regulations extend to Scotland. Regulation 2(2) inserts section 14AA into the 1981 Act, making it an offence for a person to contravene Article 7(1)(b) to (h) of the Invasive Alien Species Regulations (where the activity does not constitute an offence under sections 14, 14ZC or 14A of the 1981 Act). Regulation 2(3) amends section 14C of the 1981 Act to extend the information that may be included in a code of practice made by the Scottish Ministers under that section. The information may now include which species, sub-species or lower taxons of animal, plant, fungus or micro-organism are considered to be invasive alien species. A code of practice may also include information on best practice for keeping an invasive alien species in a contained holding, best practice for measures to ensure that an invasive alien species cannot reproduce or escape, and the circumstances in which an invasive alien species is considered to be a companion animal. Regulation 2(7) amends section 21 of the 1981 Act to make provision for penalties in respect of which a person, who commits an offence under section 14AA, section 19ZC (as amended by regulation 2(5)), or section 19ZD (as amended by regulation 2(6)), is liable. Regulation 2(8) inserts schedule 9B into the 1981 Act. The schedule contains provision about defences to a charge of committing an offence under section 14AA, or section 14ZC or 14A where the activity to which the charge relates contravenes Article 7(1) of the Invasive Alien Species Regulations. Schedule 9B also contains provision restricting the granting of a licence under section 16(4)(c) of the 1981 Act (as amended by regulation 2(4)). Regulation 3 amends the Conservation (Natural Habitats, &c.) Regulations 1994 to correct an error.

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 0.96.

Basis
the provision says a person “commits an offence”; the provision says the conduct “is an offence”; the provision says the conduct “constitutes an offence”
Confidence
0.96 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