Safeguarding of information.

Q: Is paragraph 8(4) of SCHEDULE 2 TO THE ORDER of The Official Secrets Act 1989 (Hong Kong) Order 1992 a strict liability offence?

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.

paragraph 8(4) of SCHEDULE 2 TO THE ORDER of The Official Secrets Act 1989 (Hong Kong) Order 1992

Status not determined
Strict liability
Terrorism, official secrets and national security

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

4 Where a person has in his possession or under his control any document or other article which it would be an offence under section 5 above for him to disclose without lawful authority, he is guilty of an offence if— a he fails to comply with an official direction for its return or disposal; or b where he obtained it from a Crown servant or government contractor on terms requiring it to be held in confidence or in circumstances in which that servant or contractor could reasonably expect that it would be so held, he fails to take such care to prevent its unauthorised disclosure as a person in his position may reasonably be expected to take.

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 This is the text as originally made; later amendments are not shown here.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: failing to comply with a notice or direction
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 paragraph 8(4) of SCHEDULE 2 TO THE ORDER?

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.

Being served with a notice under the Official Secrets Act 1989 (Hong Kong) Order 1992 and doing nothing by the date it specifies.
Doing part of what the notice requires, where it required all of it.
Disagreeing with the notice and ignoring it, rather than using whatever appeal the instrument provides.

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.

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: 4 June 1992
In force from: 30 June 1992
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 extends the Official Secrets Act 1989 to Hong Kong with the exceptions, adaptations and modifications specified in Schedule 1 to this Order to form part of the law of Hong Kong. The exceptions, adaptations and modifications are required in order to reflect that Hong Kong is a dependent territory which has laws of its own, its own administration and permanent residents. The text of the Act, as extended to Hong Kong, is set out in full in Schedule 2 to the Order.

Read the full note and every offence in this instrument

Other offences in the same instrument

Security and intelligenceparagraph 1(1) of SCHEDULE 2 TO THE ORDER
Security and intelligenceparagraph 1(3) of SCHEDULE 2 TO THE ORDER
Defenceparagraph 2(1) of SCHEDULE 2 TO THE ORDER
International relationsparagraph 3(1) of SCHEDULE 2 TO THE ORDER
Crime and special investigation powersparagraph 4(1) of SCHEDULE 2 TO THE ORDER
Information resulting from unauthorised disclosures or entrusted in confidenceparagraph 5(2) of SCHEDULE 2 TO THE ORDER
Information resulting from unauthorised disclosures or entrusted in confidenceparagraph 5(6) of SCHEDULE 2 TO THE ORDER
Subject to subsection (3) below, the person into whose possession the information, document or article has…paragraph 6(2) of SCHEDULE 2 TO THE ORDER
Safeguarding of informationparagraph 8(1) of SCHEDULE 2 TO THE ORDER
Safeguarding of informationparagraph 8(5) of SCHEDULE 2 TO THE ORDER
Safeguarding of informationparagraph 8(6) of SCHEDULE 2 TO THE ORDER

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 Official Secrets Act 1989 (Hong Kong) Order 1992 Every offence this instrument creates, and its explanatory note
Terrorism, official secrets and national securityOther offences on the same subject
Offences created in 1992