Application of Articles 3 and 4

Q: Is article 5(2) of The Iraq and Kuwait (United Nations Sanctions) (Dependent Territories) Order 1990 a strict liability offence?

The prosecution must prove the conduct, and - for those elements the provision qualifies - the state of mind it names. The remaining elements carry no fault requirement, so they are strict.

article 5(2) of The Iraq and Kuwait (United Nations Sanctions) (Dependent Territories) Order 1990

Status not determined
Mixed — some elements strict, some not
International sanctions, export control and trade restrictions

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

2 Any person specified in paragraph
1 of this Article who contravenes the provisions of Article 3(1) or (2) or Article
4 shall be guilty of an offence.

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 This is the text as originally made; later amendments are not shown here.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: Mixed — some elements strict, some not
Burden of proof: No statutory defence — prosecution proves everything

The prosecution must prove the conduct, and - for those elements the provision qualifies - the state of mind it names. The remaining elements carry no fault requirement, so they are strict.

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

Classifier’s reasoning: the offence itself carries no fault word, but a duty it criminalises by cross-reference uses has reason to believe; which element that governs was not determined.

What would breach article 5(2)?

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.

On these words an offence is committed where a person contravenes the provisions of Article 3(1) or (2) or Article 4.
Doing the thing the provision prohibits under the Iraq and Kuwait (United Nations Sanctions) (Dependent Territories) Order 1990, whatever the reason for doing it.
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.

Sentencing organisations: fines and the means of a corporate defendant All courts in England and Wales
How a fine on a company is arrived at from its turnover. Relevant far beyond the guidelines that state it, because a very large share of the offences in this corpus can only be committed by an organisation.
Fraud, bribery and money laundering offences: definitive guideline Magistrates' courts and the Crown Court in England and Wales · in force from 1 October 2014
Covers fraud, false accounting, bribery and money laundering, including offences committed by organisations.
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: Status not determined
Made: 8 August 1990
In force from: 9 August 1990
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 Order, made under the United Nations Act 1946, applies to each of the territories specified in Schedule 1. It prohibits the importation into the territory of certain goods exported from Iraq or Kuwait and the exportation from the territory of certain goods intended for Iraq or Kuwait. It also prohibits certain activities and dealings relating to the exportation from Iraq or Kuwait of the former goods and the supply to Iraq or Kuwait of the latter goods, including carriage of these goods in British ships or aircraft. It also makes provision for the investigation of ships and aircraft that are suspected of contravening this Order. It confers certain powers relating to the obtaining of evidence and information for the purposes of the Order.

Read the full note and every offence in this instrument

Other offences in the same instrument

Importation of Goods into the Territoryarticle 2(2)
Exportation of Certain Goods from the Territoryarticle 6(2)
Carriage of certain goods exported from or destined for Iraq or Kuwaitarticle 7(4)
Carriage of certain goods exported from or destined for Iraq or Kuwaitarticle 7(5)
Investigation, etc. of suspected British ships and aircraftarticle 8(8)
Any person who — a without reasonable excuse, refuses or fails within the time and in the manner specified…paragraph 5 of SCHEDULE 1
c with intent to evade the provisions of this Schedule, destroys, mutilates, defaces, secretes, or removes…paragraph 5(c) of SCHEDULE 1

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

This provision on legislation.gov.uk The authoritative text. Check it before relying on anything here.
The Iraq and Kuwait (United Nations Sanctions) (Dependent Territories) Order 1990 Every offence this instrument creates, and its explanatory note
International sanctions, export control and trade restrictionsOther offences on the same subject
Offences created in 1990