17 Any person who, without lawful authority or excuse, proof of which shall lie on him– a defaces,…

article 17 of The Tuberculosis (Deer) Order 1989

• Revoked
• Strict liability
• Dogs, animals, hunting and wildlife

The provision has been revoked and no saving provision preserving liability for earlier conduct was found.

What the provision says

17 Any person who, without lawful authority or excuse, proof of which shall lie on him–

a defaces, obliterates or removes any mark or identification as is referred to in article 6(2)(c), 6(3) or

13 above; or

b contravenes any provision of this Order or of

a licence issued or of

a notice served under this Order; or

c fails to comply with any such provision or with any condition of any such licence or notice or with any requirement made under this Order;

d causes or permits any such contravention or non-compliance,commits an offence against the Act.

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 This is the text as originally made; later amendments are not shown here.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

contravening a requirement of the instrument

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 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.

“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 lawful excuse (an element).

The defence, as drafted

17 Any person who, without lawful authority or excuse, proof of which shall lie on him– a defaces, obliterates or removes any mark or identification as is referred to in article 6(2)(c), 6(3) or 13 above; or b contravenes any provision of this Order or of a licence issued or of a notice served under this Order;

What would breach article 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. Doing the thing the provision prohibits under the Tuberculosis (Deer) Order 1989, whatever the reason for doing it.
2. Where the requirement is a positive duty, letting the time for performing it pass without performing it.

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.

• Animal cruelty: definitive guideline Magistrates' courts in England and Wales · in force from 1 July 2017

  Covers cruelty to and neglect of animals, and the associated disqualification and deprivation orders.

• Reduction in sentence for a guilty plea: definitive guideline All courts in England and Wales · in force from 1 June 2017

  The sliding scale of credit for pleading guilty, from one third at the first stage of proceedings downwards.

• General guideline: overarching principles All courts in England and Wales · in force from 1 October 2019

  The guideline a court uses when there is no offence-specific guideline, which is the position for the overwhelming majority of offences created by statutory instrument. It sets out how culpability and harm are assessed from first principles.

• Totality: definitive guideline All courts in England and Wales

  How to sentence more than one offence at once so that the total is just and proportionate - frequently in point here, because regulatory prosecutions commonly charge several breaches of the same instrument.

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 Tuberculosis in Specified Animals (Scotland) Order 2015

Revoked on

9 October 2015

Made

22 May 1989

In force from

1 June 1989

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 Order) — the explanatory note published with the instrument, © Crown copyright.

This Order contains provisions relating to tuberculosis in deer and, in particular, provides for– a the compulsory notification of tuberculosis in deer and in carcases of deer (articles 5 and 6); b the investigation by a veterinary inspector into the existence of tuberculosis in deer and the examination by him of deer and their carcases for this purpose (article 6(1), (2) and (3)); c the imposition (by notice in Form A served by a veterinary inspector) of certain requirements in respect of deer which are affected or suspected of being affected with tuberculosis, including the isolation of such deer from all other deer and from cattle (article 6(4), (5) and (6)); d the testing of deer (if required by notice) and the reporting of the results of such tests (article 7); e the prohibition of the vaccination and treatment of deer for tuberculosis (article 8); f precautions which may be required (by notice) to be taken against the spread of tuberculosis in deer, including the isolation of deer and the cleansing and disinfection of premises (articles 9 and 10); g the marking and identification of deer (article 13); h the prohibition of the exposure for sale in a market of a deer by its owner unless it is marked or identified in accordance with the provisions of the Order and the mark or identification is clearly legible (article 14); and i offences (article 17).

Read the full note and every offence in this instrument

Other offences in the same instrument

• d causes or permits any such contravention or non-compliance,commits an offence against the Actarticle 17(d)

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

• This provision on legislation.gov.uk The authoritative text. Check it before relying on anything here.
• The Tuberculosis (Deer) Order 1989 Every offence this instrument creates, and its explanatory note
• Dogs, animals, hunting and wildlifeOther offences on the same subject
• Offences created in 1989