UK Offence Report

17 In regulation 31 (offences)— a before paragraph (1)(a), insert— za regulation 3A(1), zb regulation 3A(3),…

regulation 17 of The Deposit and Return Scheme for Scotland Amendment Regulations 2023

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

17 In regulation 31 (offences)— a before paragraph (1)(a), insert— za regulation 3A(1), zb regulation 3A(3), , b after paragraph (2)(e), insert— , f an application for listing as a producer of a low volume product submitted in accordance with paragraphs 5 to 8 of schedule 5, g a notification of any material change in accordance with paragraph 14(c) of schedule 5, h a notification that a product is no longer a low volume drink product in accordance with paragraph 14(d) of schedule 5 , c after paragraph (5), insert— 5A It is an offence for a listed producer to fail, without reasonable excuse, to comply with the obligations set out in paragraph 14(c), (d), (f) and (g) of schedule 5. , d in paragraph (8),— i in sub-paragraph (a)(ii), for “21(2)” substitute “21(3)”, ii after sub-paragraph (b), insert— ba to fail to comply with regulation 19(3), bb to fail to comply with regulation 19(4), bc to fail to comply with regulation 20(5)(d), bd to fail to comply with regulation 20A, be to fail to comply with regulation 21(5)(a) and (b), , iii in sub-paragraph (c), for “21(4)” substitute “21(8)”, iv after sub-paragraph (c) insert— ca to fail to comply with regulation 21(10), .

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 This is the text as originally made; later amendments are not shown here.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 listed producer
Conduct
failing to do something the instrument requires
Fault element
Strict liability
Burden of proof
An element of the offence, for the prosecution to prove

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 listed producer 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.

“Without reasonable excuse” here is an element of the offence rather than a defence, so its absence is for the prosecution to prove (R v Charles [2009] EWCA Crim 1570).

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision; qualified by reasonable excuse (an element; prosecution disproves once raised).

The defence, as drafted

insert— 5A It is an offence for a listed producer to fail, without reasonable excuse, to comply with the obligations set out in paragraph 14(c), (d), (f) and (g) of schedule 5. , d in paragraph (8),— i in sub-paragraph (a)(ii), for “21(2)” substitute “21(3)”, ii after sub-paragraph (b), insert— ba to fail to comply with regulation 19(3), bb t

What would breach regulation 17?

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 it is an offence to fail, without reasonable excuse, to comply with the obligations set out in paragraph 14(c), (d), (f) and (g) of schedule 5.
  2. Not doing what the provision requires under the Deposit and Return Scheme for Scotland Amendment Regulations 2023, by the time it requires it to be done.
  3. Doing it, but not in the manner or to the standard the instrument specifies.

Penalty

Mode of trial
Not determined
Maximum fine
Not determined
Maximum prison (summary)
Not determined

no penalty is stated here: this instrument amends another one, and the penalty for the offence is in the instrument being amended.

No penalty was determined from this instrument. It may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence. Absence of a figure here is not evidence that the offence carries no penalty.

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
29 June 2023
In force from
30 June 2023
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 amend the Deposit and Return Scheme for Scotland Regulations 2020 (“the 2020 Regulations”) which make provision for the operation of a deposit and return scheme. These Regulations come into force on the day after the day on which they are made. Regulation 2 defines the 2020 Regulations for the purposes of these Regulations. Regulation 4 amends the date in regulation 1(5) of the 2020 Regulations (the date on which parts 2, 7 and 8, and certain provisions in Part 5, of the 2020 Regulations come into force). Regulation 5 inserts a definition of a large retailer, a listed producer and a low volume drink product into regulation 2(1) of the 2020 Regulations and amends the definition of producer. Regulation 6 amends the definition of scheme article in the 2020 Regulations. Regulation 7 inserts a new regulation 3A into the 2020 Regulations which prohibits the marketing or sale (including through online retail or vending machine sales to a consumer in Scotland) of a low volume drink product, unless the producer is listed or registered with SEPA. The seller must also inform the purchaser that the product is not a scheme article. Regulation 8 amends regulation 5 of the 2020 Regulations so that the obligations there take effect from 1 March 2024. Regulation 9 amends the dates by which a producer must apply for registration under regulation 7 of the 2020 Regulations. Regulation 10 amends the dates from which a registration takes effect under regulation 8 of the 2020 Regulations. Regulation 11 is a consequential change to amend the reference to the registration date. Regulation 12 amends regulation 19 of the 2020 Regulations to provide an exemption from operating a return point if the retailer sells ninety or more per cent of scheme articles for consumption on the premises of sale; a new requirement is placed on retailers exempt under regulation 19 to display information that the premises are exempt. Regulation 13 amends regulation 20 of the 2020 Regulations to allow a return point operator to refuse the return of items of scheme packaging wholly or partly made of a particular material to ensure the return point operator is not at significant risk of being in breach of any legal obligation relating to food safety or health and safety. Regulation 14 inserts regulation 20A to require hospitality retailers to retain scheme packaging for collection by, or on behalf of, a producer or a scheme administrator. Regulation 15 substitutes regulation 21 of the 2020 Regulations with a new regulation to require large retailers selling scheme articles by means of distance retail sales to provide a takeback service to consumers who meet certain criteria, to enable those consumers to return items of scheme packaging. Regulation 16 amends regulation 26 to add a right of appeal to the Scottish Ministers if SEPA refuses an application for listing of a producer of a low volume drink product. Regulation 17 inserts new offences into regulation 31 of the 2020 Regulations in relation to the new obligations contained in regulations 3A(1) and (3), 19(3) and (4), 20(5)(d), 20A, 21(3), (5)(a) and (b), (8) and (10), and paragraphs 5 to 8 and 14(c), (d), (f) and (g) of schedule 5 of the 2020 Regulations (as either inserted or amended by these Regulations). Regulation 18 amends the date by which the 2020 Regulations must be reviewed. Regulation 19 amends schedule 1 to allow registered producers to provide information to SEPA in relation to low volume drink products. Regulation 20 amends paragraph 1 of schedule 3 so that the collection target of the first full year of the scheme is 80% and the target for subsequent years is 90%. Regulation 21 inserts a new schedule 5 to make provision in relation to low volume drink products. Regulation 22 makes transitional provision for applications for producer registration received by SEPA before the coming into force of these Regulations. An update to the Business Regulatory Impact Assessment will be published by the Scottish Government online at 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