UK Offence Report

Transitional provision where there is failure to establish that the time of commission of offence was before…

regulation 3(4) of The Hate Crime and Public Order (Scotland) Act 2021 (Commencement and Transitional Provision) Regulations 2024

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

4 Paragraph (5) applies if, in any trial—

a the accused is charged with conduct which is an offence and is also charged with an aggravation of the offence under both the 2021 Act and

a provision of existing law which is listed in the schedule,

b there is

a failure to establish beyond reasonable doubt that the time when the conduct took place was before

1 April 2024,

c the court (or, in the case of

a trial of an indictment, the jury) is satisfied in every other respect that the offence took place, and

d the court is satisfied that the offence was aggravated by prejudice.

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 This is the text as originally made; later amendments are not shown here.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
failing to do something the instrument requires
Fault element
Strict liability
Burden of proof
No statutory defence — prosecution proves everything

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

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

What would breach regulation 3(4)?

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. Not doing what the provision requires under the Hate Crime and Public Order (Scotland) Act 2021 (Commencement and Transitional Provision) Regulations 2024, by the time it requires it to be done.
  2. 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 in this instrument; it may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence.

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
14 March 2024
In force from
1 April 2024
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 commence the provisions of the Hate Crime and Public Order (Scotland) Act 2021 (“the 2021 Act”), to the extent that they are not already in force. The Bill for the 2021 Act received Royal Assent on 23 April 2021. Sections 17, 21 and 22 came into force the following day. Regulation 3 makes transitional provision which takes effect where there is failure to establish that the time of commission of an offence was before 1 April 2024. Regulation 3(1) to (3) apply where the accused is charged with the same conduct under both the 2021 Act and any of the provisions of existing law which are listed in the schedule of the Regulations. It applies where a court (or jury, as the case may be) is satisfied that the accused committed an offence charged but it has not been established beyond reasonable doubt that the offence took place before 1 April 2024. If those circumstances are met, regulation 3(2) provides for the penalty that applies on conviction. Where the maximum penalty under the existing law is less than the maximum penalty for the offence under the 2021 Act, the accused may be found guilty of the offence under the existing law and the penalty for the offence under the existing law will apply. Otherwise, the accused may be found guilty of the offence under the 2021 Act and the penalty for the offence under that Act will apply. Regulation 3(3) provides for the interpretation of the maximum penalty. Regulation 3(4) and (5) make further transitional provision where there is failure to establish that the time of the commission of an offence was before 1 April 2024 and the accused is charged with an aggravation by prejudice under the existing law and under the 2021 Act. Where the court or jury is satisfied in every other respect that the offence has taken place, and the court is satisfied that the offence was aggravated by prejudice, regulation 3(5) provides that the aggravation provision under the 2021 Act will apply. Regulation 3(6) provides that a reference to an offence in the regulation includes an attempt to commit the offence, inciting its commission, and being involved art and part in it.

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 0.62.

Basis
the provision says an offence is committed “if” something happens
Confidence
0.62 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