UK Offence Report

Powers of the Director to obtain and disclose information and disclosure of information generally

regulation 7(7) of The Control of Misleading Advertisements Regulations 1988

The provision has been revoked and no saving provision preserving liability for earlier conduct was found.

What the provision says

7 Subject to paragraph (5) above, any person who knowingly discloses, otherwise than for the purposes of any legal proceedings or of

a report of such proceedings or the investigation of any criminal offence, any information obtained by means of the exercise of the power conferred by paragraph (1) above without the consent either of the person to whom the information relates, or, if the information relates to

a business, the consent of the person for the time being carrying on that business, shall be guilty of an offence and liable on summary conviction to imprisonment for

a term not exceeding

3 months or to

a fine not exceeding £2,000 or to 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 This is the text as originally made; later amendments are not shown here.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 person
Conduct
acting without the licence or authorisation required
Fault element
Requires proof of a state of mind
Burden of proof
No statutory defence — prosecution proves everything

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

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

Classifier’s reasoning: mens rea word in the offence-creating words: knowingly.

What would breach regulation 7(7)?

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. Starting the activity before the licence is granted, rather than on the day it takes effect under the Control of Misleading Advertisements Regulations 1988.
  2. Carrying on after a licence has expired, been surrendered or been suspended.
  3. Relying on somebody else's authorisation, where the provision requires the person doing the act to hold one.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
£2,000
Maximum prison (summary)
3 months

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
Revoked
Revoked by
The Consumer Protection from Unfair Trading Regulations 2008
Revoked on
26 May 2008
Made
23 May 1988
In force from
20 June 1988
Extent
Not stated

How this was established: the instrument was revoked by a later instrument found in this corpus.

What the instrument is for

(This note is not part of the Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations implement Council Directive No. 84/450/EEC (OJ No. L 250 19.9.1984, p. 17) relating to misleading advertising. The Director General of Fair Trading is required to consider complaints (other than frivolous Or vexatious ones) about misleading advertisements. The Director is not required to consider complaints about commercial radio or television advertisements or cable advertisements. Before he considers a complaint the Director may require the person making the complaint to satisfy him that appropriate means of dealing with the complaint have been tried and that, despite being given a reasonable opportunity to do so, those means have not dealt with the complaint adequately. (Such means might include complaining to a local authority trading standards department or to a self-regulatory body, such as the Advertising Standards Authority. It is, however, for the Director to determine what means he considers appropriate in any particular case.) In dealing with complaints the Director is required to bear in mind all the interests involved, including, in particular, the public interest, and the desirability of encouraging the control, by self-regulatory bodies, of advertisements (regulation 4). The Director is given power to bring proceedings for an injunction to prevent the publication or continued publication of an advertisement which he considers misleading. He is required to give reasons for his decision to bring or not to bring proceedings for an injunction (regulation 5). The IBA is placed under a similar duty to consider complaints about commercial radio and television advertisements. It is required to give reasons for its decisions and in exercising its powers under the Regulations, to have regard to all the interests involved and, in particular, the public interest (regulation 8). The IBA may refuse to broadcast an advertisement which it thinks is misleading. It may also require, having regard to the interests affected by the requirement, substantiation of factual claims in advertisements. Failing substantiation of them, it may treat such claims as inaccurate (regulation 9). The Cable Authority is placed under a similar duty to consider complaints about misleading cable advertisements, but is not to consider complaints about advertisements included in IBA or BBC broadcasts where, after being received, those broadcasts are immediately retransmitted by cable. The Authority is required, in dealing with complaints, to bear in mind the same matters as the IBA (regulation 10). The Cable Authority is given power to give directions (including a direction not to transmit it) in relation to an advertisement which it thinks is misleading and is required to give reasons for its decisions to give or not to give directions. The Authority is given the same powers as the IBA in relation to the substantiation of factual claims in advertisements and to treating such claims as inaccurate (regulation 11). The Court is given power to grant applications by the Director General of Fair Trading for injunctions preventing the publication of advertisements it considers misleading, including advertisements likely to convey the same impression as the advertisement to which the application relates. Where the application is for an interlocutory injunction, the Court need not be satisfied that the advertisement is misleading. The Court has the same powers to require substantiation of factual claims and to treat them as inaccurate as are conferred on the IBA and the Cable Authority. No proof of loss or damage to anyone or of intent on the part of the person responsible for publishing an advertisement is needed before the Court may grant an injunction (regulation 6). Provision is made for the obtaining and disclosure of information by the Director General of Fair Trading and others and for the dissemination of information and advice by the Director (regulation 7). Various expressions used in the Regulations, including “advertisement” and “misleading advertisement”, are defined (regulation 2). The Regulations do not apply to certain investment advertisements and advertisements in respect of investment business as defined in the Financial Services Act 1986 nor to advertisements which relate to the official listing of Securities as provided for by Part IV of that Act (regulation 3). The 1986 Act makes separate provision in relation to those advertisements.

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.

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 is “guilty of 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