UK Offence Report

The Milk (Special Designations) (Scotland) Order 1988

article 22 of The Food Safety Act 1990 (Consequential Modifications) (Scotland) Order 1990

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

Adulteration 2D

1 A person–

a who adds any water or colouring matter, or any dried or condensed milk or liquid reconstituted from it, to milk intended for sale for human consumption; or

b who sells, or offers or exposes for sale, or has in his possession for the purpose of sale, for human consumption, any milk to which any addition has been made in contravention of sub-paragraph (a) above, is 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 This is the text as originally made; later amendments are not shown here.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
breaching a condition of a licence, permit or consent
Fault element
Mixed — some elements strict, some not
Burden of proof
Legal burden on the defendant

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 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 fault word in the offence-creating words, but the surrounding provision uses reasonably practicable, reasonable cause to believe - which element it governs was not determined.

The defence, as drafted

or more breaches. 4 In any prosecution under this article, it shall be a defence for the holder of the licence to prove (either as to the breach for which he is being prosecuted or as to the earlier breach relied on for the purposes of paragraph (3) above, unless it is one under which he has been convicted of such an offence)– a that neither he nor any servant or agent of his–

What would breach article 22?

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 person sells, or offers or exposes for sale, or has in his possession for the purpose of sale.
  2. Holding a valid licence but doing the thing it allows outside the hours, place or limits its conditions set under the Food Safety Act 1990 (Consequential Modifications) (Scotland) Order 1990.
  3. Failing to do something a condition positively requires - a record, a notification, a monitoring step - even though the licensed activity itself is carried on properly.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
£5,000
Maximum prison (summary)
Not determined
Maximum prison (on indictment)
2 years

expressed as the statutory maximum (the prescribed sum): the same words mean £5,000 in England and Wales and £10,000 in Scotland.

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
21 December 1990
In force from
1 January 1991
Extent
S

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

This Order amends various Orders and Regulations applying to Scotland which refer to the Food and Drugs (Scotland) Act 1956, the Milk and Dairies (Amendment) Act 1922 and the Milk (Special Designations) Act 1949, which have now been repealed by the Food Safety Act 1990. The Order amends Orders and Regulations referring to the 1956 Act and the 1922 and 1949 Acts. It amends Orders and Regulations defining food so that they are consistent with the new definition in the 1990 Act, and changes references to local authorities to food authorities as defined in that Act. Where Orders and Regulations apply provisions of the earlier Acts, they are amended so that the provisions of the 1990 Act are applied. Amendments are made to Regulations relating to imports and meat, and Orders and Regulations relating to milk are amended so that provisions contained in the earlier Acts concerning milk are now in those Orders and Regulations.

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 0.92.

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