UK Offence Report

Offences: single-use plastic products and single-use expanded polystyrene products

regulation 3(3) of The Environmental Protection (Single-use Plastic Products) (Scotland) Regulations 2021

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

3 A person who uses plastic to manufacture any of the products referred to in sub-paragraphs (4)(d) to (f) commits an offence.

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 This is the text as originally made; later amendments are not shown here.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
breaching the provision
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

ns, it is a defence for that person to show that the person took all reasonable precautions and exercised all due diligence to prevent the offence being committed. 2 Where the defence provided by paragraph (1) 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 entit

What would breach regulation 3(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. On these words an offence is committed where a person uses plastic to manufacture any of the products referred to in sub-paragraphs (4)(d) to (f).
  2. Doing what the provision prohibits, or failing to do what it requires under the Environmental Protection (Single-use Plastic Products) (Scotland) Regulations 2021.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
£5,000
Standard scale
Level 5
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
9 November 2021
In force from
1 June 2022
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 these Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations prohibit the manufacture and the supply in the course of a business of the listed single-use plastic products and come into force on 1 June 2022. Regulation 3 provides that it is an offence for a person to manufacture or, in the course of a business, supply, offer to supply, or have in their possession for supply any of the following products— a single-use expanded polystyrene beverage cups, b single-use expanded polystyrene beverage containers, c single-use expanded polystyrene food containers, d single-use plastic beverage stirrers, e single use plastic cutlery, and f single-use plastic plates. Regulation 4 provides that is an offence for a person, in the course of a business, to supply, offer to supply, or have in their possession for supply, single-use plastic balloon sticks, with the exception of sticks for attaching to balloons for industrial or other professional uses. Regulation 5 provides that it is an offence for a person, in the course of a business, to supply, offer to supply, or have in their possession for supply, to an end-user, single-use plastic straws, subject to certain exceptions. The exceptions are the supply of straws which are medical devices or are for use for medical purposes (regulation 6), the supply of straws by retail pharmacy businesses (regulation 7), the supply of straws by catering establishments together with food or drink for immediate consumption (regulation 8), the supply of straws in certain establishments such as schools and care homes (regulation 9), the supply of straws for use in a support service which provides personal care or personal support (regulation 10), and the supply of straws which are packaging (regulation 11). A person found guilty of an offence under these Regulations will be liable on summary conviction to a fine not exceeding level 5 on the standard scale (regulations 3(5), 4(3) and 5(3)). Regulation 12 makes provision for offences by bodies corporate, Scottish partnerships and unincorporated associations. Regulation 13 provides a due diligence defence. Regulation 14 provides that a local authority may authorise any person that appears suitable to exercise any of the powers specified in regulation 15. Regulation 15 provides for enforcement officers to have powers of entry and associated powers to carry out the necessary investigations in order to determine whether an offence has been or is being committed. A Business Regulatory Impact Assessment has been prepared and placed in the Scottish Parliament Information Centre. Copies can be obtained from the Scottish Government Environmental Quality and Circular Economy Division, Area 3H South, Victoria Quay, Edinburgh EH6 6QQ, and online at www.legislation.gov.uk.

Read the full note and every offence in this instrument

What Parliament said

Mentions of this instrument in Hansard. Parliamentary material is reused under the Open Parliament Licence v3.0.

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