UK Offence Report

EC mark and other information on or accompanying products

regulation 5(3) of The Construction Products Regulations 1991

The provision has been revoked and no saving provision preserving liability for earlier conduct was found.

What the provision says

3 Any person who–

a makes an EC declaration of conformity in respect of

a construction product which does not satisfy the criteria set out in sub-paragraph (a) or (b) of paragraph (1) above;

b affixes the EC mark to

a construction product otherwise than in accordance with paragraphs (1) and (2) above;

c affixes to

a construction product any mark which is likely to be confused with the EC mark;

d supplies, on the first occasion on which it is supplied in the Community,

a construction product to which the EC mark has been affixed outside the Community otherwise than in accordance with paragraphs (1) and (2) above or the Directive as implemented under the law of

a member State other than the United Kingdom; or

e supplies, on the first occasion on which it is supplied in the Community,

a construction product to which any mark which is likely to be confused with the EC mark has been affixed outside the Community, shall be guilty of an offence and liable on summary conviction to imprisonment for

a term not exceeding three months or to

a fine not exceeding level

5 on the standard scale 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 This is the text as originally made; later amendments are not shown here.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
selling or supplying something the instrument restricts
Fault element
Strict liability
Burden of proof
No statutory defence — prosecution proves everything

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.

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

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

What would breach regulation 5(3)?

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. Selling the goods under the Construction Products Regulations 1991 where the instrument prohibits the sale outright.
  2. Supplying without carrying out a check the instrument requires first, even where the sale would otherwise be lawful.
  3. Offering for sale counts as well as selling: displaying stock is enough where the provision reaches an offer.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
£2,000
Standard scale
Level 5
Maximum prison (summary)
3 months

this is the level 5 value when the instrument came into force (1991-12-27); the standard scale is keyed to the date the offence was committed, and for conduct today the same words mean an unlimited fine.

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 Construction Products Regulations 2013
Revoked on
1 July 2013
Made
15 July 1991
In force from
27 December 1991
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 89/106/EEC on the approximation of laws, regulations and administrative provisions of the member States relating to construction products “the Directive”. The Directive is based on the Council resolution of 7th May 1985 on a new approach to technical harmonisation and standards (OJ No. C136, 4.6.85, p. 1). Regulation 3(1) requires construction products, except “minor part products” (this and other expressions are defined in regulation 2), to have such characteristics that the works in which they are incorporated can, if properly designed and built, satisfy essential requirements insofar as those requirements apply to the works. The essential requirements, which are expressed in terms of general objectives in Schedule 2, will be given concrete form in interpretive documents published in the Official Journal of the European Communities. The interpretative documents will in turn lead to the formulation of harmonised standards for construction products; these standards will be transposed into “relevant national standards”. Regulation 4 provides that in the case of a construction product which bears the EC mark denoting conformity with the relevant technical specifications applicable to that product there shall be a presumption that the product satisfies the relevant requirement in regulation 3. The EC mark may be affixed to a construction product which is not a minor part product by the manufacturer or his agent in the United Kingdom if the criteria set out in regulation 5(1) are satisfied. Those criteria involve the attestation, by means of an EC certificate or declaration of conformity, that the product complies with a relevant technical specification. The EC mark is to be accompanied by the information described in regulation 5(2). In the case of products bearing the EC mark, regulation 6 requires certain people to keep available and produce the EC certificate or declaration of conformity or a copy of it. Regulation 7 requires the supplier of a product which is not so marked to provide information about the product. Regulation 5(3) makes it an offence to make an EC declaration of conformity in respect of, or to affix the EC mark to, a construction product otherwise than in accordance with the Regulations. Where the EC mark has been affixed otherwise than in accordance with the Directive, it is also an offence to supply a construction product on the first occasion when it is supplied in the Community. In the case of minor part products the Regulations require that they shall have been, and declared to have been, manufactured in accordance with the acknowledged rule of technology (regulation 3(3)). Regulation 8 makes it an offence to supply a construction product which does not satisfy the requirement in regulation 3. Regulations 9 to 14, which are similar in form to sections 13 to 18 of the Consumer Protection Act 1987 (c. 43) “the 1987 Act”, enable action to be taken to remove from the market construction products which do not satisfy the requirements of the Regulations. The Secretary of State may serve a notice prohibiting a person from supplying a product (a prohibition notice), requiring him to publish a warning about products supplied (a notice to warn), or requiring him to provide information to enable the Secretary of State to decide whether to exercise these powers. Failure to comply with such a notice is an offence. Enforcement authorities may apply to the court for an order that products be forfeited. Parts III and IV are similar to Parts IV and V of the 1987 Act. Regulations 16 to 18 confer powers on officers of enforcement authorities to make test purchases, search premises and examine, seize and detain products and records, and regulation 19 permits a customs officer to seize and detain imported products. Regulation 20 creates offences of obstructing an officer with enforcement powers, failing to comply with any requirement made under the Regulations by such an officer, failing to provide information and making false statements to such an officer. Regulation 21 confers a right of appeal against the detention of a product and regulation 22 provides for compensation to be payable in certain circumstances in respect of loss or damage resulting from the seizure and detention of products. Regulation 23 provides that where a court convicts a person of an offence under Part II or makes an order for forfeiture of any products it may order the person concerned to reimburse the enforcement authority’s expenses of seizing and detaining or forfeiting the products. Regulation 24 permits the Commissioners of Customs and Excise to disclose information relating to imported products to enforcement authorities and their officers. Regulation 25 imposes restrictions on the disclosure of information obtained in the exercise of the powers conferred by the Regulations. Regulation 26 applies a defence of due diligence to certain offences under the Regulations. Regulation 27 provides for the liability of persons whose act or default leads to the commission of an offence by others. Regulations 28 to 31 contain miscellaneous provisions relating to the service of documents, savings for certain privileges, notifications to the Secretary of State and the commencement of proceedings for certain offences. Regulation 32 provides that it is unlawful for public and certain other bodies to make, impose or enforce any rules or conditions relating to matters covered by the essential requirements which would have the effect of restricting the supply or use of products, which satisfy the relevant requirement in regulation 3. Regulation 33 makes provision in respect of certain cases where there may be an overlap between the Regulations and the health and safety at work legislation.

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