UK Offence Report

Amendment to the Genetically Modified Organisms (Deliberate Release) (Scotland) Regulations 2002

regulation 16 of The Genetically Modified Organisms (Deliberate Release etc.) (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

Offences and penalties 32B

1 A person commits an offence if that person—

a contravenes anything required of that person in

a stop notice,

b obstructs an inspector (or

a person accompanying an inspector and acting under the inspector’s instructions) in exercise of the power conferred by regulation 32A,

c supplies to an inspector (or

a person accompanying an inspector and acting under the inspector’s instructions) any information knowing it to be false or misleading,

d cultivates

a genetically modified organism in contravention of

a limit included on the geographical scope of

a consent to market under regulation 24(7) or

a renewed consent to market under regulation 26(5),

e cultivates

a genetically modified organism in contravention of

a condition in

a consent to limit its geographical scope under regulation 29A(3)(a), or

f cultivates

a genetically modified organism or approved product in contravention of

a suspension notice issued under regulation 29A(3)(b),(c) or (d).

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 This is the text as originally made; later amendments are not shown here.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
obstructing an official exercising a power
Fault element
Requires proof of a state of mind
Burden of proof
Legal burden on the defendant

The prosecution must prove both that the conduct happened and that it was done with the state of mind the provision names (knowing it to be).

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: mens rea word in the offence-creating words: knowing it to be.

The defence, as drafted

arged with an offence under paragraph (1) to show that they took all reasonable precautions and exercised all due diligence to avoid committing that offence. 3 A person who commits an offence under paragraph (1) is liable— a on summary conviction, to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding three months, or to both, or b on con

What would breach regulation 16?

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. Refusing to let an inspector onto premises they are entitled to enter under the Genetically Modified Organisms (Deliberate Release etc.) (Miscellaneous Amendments) (Scotland) Regulations 2019.
  2. Sending an official away, or telling staff to say nothing, where the power being exercised does not depend on anyone's consent.
  3. Physically blocking an examination, or removing something an officer has said they intend to inspect.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
£5,000
Standard scale
Level 5
Maximum prison (summary)
3 months

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
7 March 2019
In force from
15 March 2019
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 Genetically Modified Organisms (Deliberate Release) (Scotland) Regulations 2002 (“the principal Regulations”) to make fresh and supplementary provision to transpose and implement for Scotland, Directive (EU) 2015/412 as regards the possibility for the member States to restrict or prohibit the cultivation of genetically modified organisms (GMOs) in their territory (OJ L 68 13.3.2015, p.1.), which amends Part D (final provisions) of Directive 2001/18/EC on the deliberate release into the environment of genetically modified organisms (OJL 106 17.4.2001, p.1) (“the Deliberate Release Directive”). Regulations 10 and 11 amend regulations 24 and 26 of the principal Regulations for the inclusion of limits to the geographical scope of a consent to market a GMO (including renewals of consent) issued by the Scottish Ministers in respect of cultivation of the GMO to exclude all or part of Scotland where demanded either by the Scottish Ministers or by another member State. There are also provisions therein to vary or remove such limits if required. Regulation 12 introduces new regulations 26A and 26B into the principal Regulations. Regulation 26A permits the Scottish Ministers to demand of an applicant that all or part of Scotland is excluded from an application made to them, to a competent authority of another part of the UK or to another member State for consent to place on the market a GMO under Part C (placing on the market of GMOs as or in products) of the Deliberate Release Directive (including a renewal of such a consent) or for an authorisation to market genetically modified food or feed under Council Regulation (EC) 1829/2003 on genetically modified food and feed (OJ L 268, 18.10.2003, p.1) (“the Food and Feed Regulation”). Regulation 26B allows the Scottish Ministers to request reintegration of all or part of Scotland into a consent, renewed consent or authorisation. Regulation 13 introduces new regulations 29A and 29B into the principal Regulations. These provide the Scottish Ministers with the power to restrict consent (including a renewed consent) granted by them or otherwise under the Deliberate Release Directive or authorisation granted by a competent authority under the Food and Feed Regulation where a demand in terms of regulation 26A has not been sought or where an applicant has refused to agree with a demand made under that regulation within 30 days, and where there is a compelling ground to do so. These Regulations also give effect to Article 4(5) of the Deliberate Release Directive enabling the Scottish Ministers to take measures to ensure compliance with that Directive by introducing investigatory powers, offences and penalties for non-compliance with consents to release or market a GMO granted under Part B or Part C of the Deliberate Release Directive. It also ensures that the Scottish Ministers can take measures to ensure compliance where they have demanded (under regulation 26A) or adopted measures (under regulation 29A) to limit the cultivation of GMOs in Scotland. In particular, regulation 14 introduces regulation 30A into the principal Regulations which introduces ‘stop notices’. This is a mechanism for the Scottish Ministers to prohibit the continuing release or marketing of or cultivation of a GMO. Regulation 16 thereafter provides the investigatory powers, offences and penalties for non-compliance by introducing Part VIA into the principal Regulations. Regulation 18 updates schedule 2 of the principal Regulations in order to update and strengthen the environmental risk assessment of genetically modified organisms, in particular concerning the assessment of long term environmental effects. There are also provisions in these Regulations which update references to other legislation, or remove obsolete provisions, in the principal Regulations (regulations 3(b) to (g), 5, 6, 7(b) and (e), 9, 10(b) and (c), and 17), in the Genetically Modified Organisms (Risk Assessment) (Records and Exemptions) Regulations 1996 (regulations 20 to 22), in the Genetically Modified Organisms (Traceability and Labelling) (Scotland) Regulations 2004 (regulation 23), and in the Genetically Modified Organisms (Transboundary Movements) (Scotland) Regulations 2005 (regulation 24).

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