UK Offence Report

Offences and penalties

regulation 28(1) of The Transfrontier Shipment of Hazardous Waste Regulations 1988

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

1 A holder, carrier or consignee who fails to comply with any provision of these Regulations, other than regulations 10,

15 and 18, shall commit an offence and be liable on summary conviction to

a fine not exceeding £2,000 or on conviction on indictment to imprisonment for

a term not exceeding two years or

a fine or both.

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 This is the text as originally made; later amendments are not shown here.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 holder
Conduct
failing to do something the instrument requires
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 holder 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

offence under these Regulations, other than regulation 27, it shall be a defence for the person charged to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any person under his control. 4 In any proceedings for an offence under regulation 28(1) for failure to comply with any provision

What would breach regulation 28(1)?

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 holder fails to comply with any provision of these Regulations, other than regulations 10, 15 and 18, shall.
  2. Not doing what the provision requires under the Transfrontier Shipment of Hazardous Waste Regulations 1988, 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
Either way — magistrates’ court or Crown Court
Maximum fine
£2,000
Maximum prison (summary)
Not determined
Maximum prison (on indictment)
2 years

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
8 September 1988
In force from
14 October 1988
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, which apply to England, Wales and Scotland, implement Council Directive No. 84/631/EEC, as amended and adapted to technical progress, on the supervision and control within the European Community of the transfrontier shipment of hazardous waste. Such waste is, with certain exceptions, “special waste” as defined in the Control of Pollution (Special Waste) Regulations 1980. The Regulations provide a system of consignment notes and uniform documents to be used by persons who produce, transport and dispose of consignments of hazardous waste. Regulations 3 to 10 prohibit holders of hazardous waste from commencing, or allowing the commencement of, the transport of a consignment to destinations outside the United Kingdom until such transport has been notified to the appropriate authorities and the relevant competent authority of the appropriate Member State has acknowledged the notification. (Lists of competent authorities for the purposes of the Directive are published in the Official Journal of the European Communities.) Where a number of consignments of hazardous waste having essentially the same physical and chemical characteristics are to be transported within a 12 month period to the same consignee through the same points of exit and entry, regulations 4 and 7 provide for notification of, and acknowledgement by, the appropriate authorities of notifications relating to the series of consignments, rather than to each individual consignment. Regulations 11 to 15 prohibit the acceptance of a consignment of hazardous waste originating outside the United Kingdom unless it is accompanied by a consignment note. Regulation 13 also requires consignees to notify the relevant authorities of the acceptance of the consignment. Regulations 16 and 17 prohibit a carrier from transporting a consignment of waste to which the Regulations apply unless the consignment is accompanied throughout its journey by the appropriate documentation. In regulations 5, 8, 10(2), 12, 14 and 15(2) provision is made for a simplified notification procedure to be used with respect to hazardous waste the non-ferrous metal content of which is to be recycled, using for this purpose a uniform document rather than a consignment note. Regulations 19 to 25 require a waste disposal authority that is notified of a consignment of hazardous waste either to acknowledge the notification or to object to the transport of the consignment giving reasons. Such action must be taken within the specified periods. Regulation 26 lays down the procedure for appealing to the Secretary of State against an objection to the transport of a consignment. Regulations 27 to 29 make provision with respect to offences. Regulation 30 amends the Control of Pollution (Special Waste) Regulations 1980. Consignment notes and uniform documents can be obtained from the Department of the Environment, Room A212, Romney House, 43 Marsham Street, London SW1P 3PY; the Welsh Office, Room 2/081, Cathays Park, Cardiff CF1 3NQ; and the Scottish Development Department, Room 109, 27 Perth Street, Edinburgh EH3 5RB.

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”; the provision states liability on summary conviction; the provision states a penalty in older drafting
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