Restrictions on disclosure of information

Q: Is regulation 97(1) of The Electromagnetic Compatibility Regulations 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.

regulation 97(1) of The Electromagnetic Compatibility Regulations 1992

Revoked
Strict liability
Energy, communications, water and utilities

The provision has been revoked and no saving provision preserving liability for earlier conduct was found.

What the provision says

1 Subject to the following provisions of this regulation, a person shall be guilty of an offence if he discloses any information— a which was obtained by him in consequence of the exercise by any person of any power conferred by Part VII of these Regulations; or b which consists in a secret manufacturing process or a trade secret and was obtained by him in consequence of the inclusion of the information— i in written or oral representations made for the purposes of Schedule 7 hereto; or ii in a statement of a witness in connection with any such oral representations.

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 This is the text as originally made; later amendments are not shown here.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 the provision
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 97(1)?

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 discloses any information— a which was obtained by him in consequence of the exercise by any person of any power conferred by Part VII of these Regulations.
Doing what the provision prohibits, or failing to do what it requires under the Electromagnetic Compatibility Regulations 1992.

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.

Environmental offences: definitive guideline Magistrates' courts and the Crown Court in England and Wales · in force from 1 July 2014
Covers unauthorised or harmful deposit, treatment or disposal of waste, illegal discharges to air, land and water, and the equivalent offences committed by organisations. It is the guideline that introduced turnover bands for corporate fines, so the size of the defendant company is a starting point rather than a mitigating detail.
Health and safety offences, corporate manslaughter and food safety and hygiene offences: definitive guideline Magistrates' courts and the Crown Court in England and Wales · in force from 1 February 2016
Covers breaches of duty under the Health and Safety at Work etc. Act 1974 and the regulations made under it, and food safety and food hygiene offences. Sentencing turns on culpability and on the seriousness and likelihood of harm risked, not only on the harm that happened.
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 Electromagnetic Compatibility Regulations 2005
Revoked on: 7 March 2005
Made: 5 October 1992
In force from: 28 October 1992
Extent: Not stated

How this was established: the instrument was revoked by a later instrument found in this corpus.

What the instrument is for

These Regulations, which impose requirements concerning the electromagnetic compatibility (EMC) of most types of electrical and electronic apparatus which must be complied with if such apparatus is to be supplied or taken into service, implement Council Directive 89/336/EEC on the approximation of the laws of the Member States relating to electromagnetic compatibility as amended by Council Directives 91/263/EEC and 92/31/EEC (the EMC Directive). These Regulations replace (regulation 2)— section 12A of the Wireless Telegraphy Act 1949 (“the 1949 Act ”) (c.54; the power to make regulations under this section was never exercised, and the section is repealed) with regard to immunity to electromagnetic disturbance; and the regulations made under section 10 of the 1949 Act listed in Schedule 1 (which are disapplied in relation to apparatus to which these Regulations apply) to the extent that they impose electromagnetic compatibility requirements (excluding radio frequency planning requirements or the implementation of Community obligations) which must be complied with if apparatus to which these regulations apply is to be supplied or taken into service. The meaning of electromagnetic disturbance is set out in regulation 4 and Schedule 2. Protection requirements for both immunity and emissions are set out in regulation 5. Part II provides for the application of the Regulations, and apparatus to which they apply is referred to as relevant apparatus (regulation 6). They apply to all electrical and electronic appliances, and equipment and installations containing electrical or electronic components or both (regulation 7), other than apparatus excepted by regulations 10 to 27. The Regulations apply with certain modifications to educational electronic equipment (regulation 8) and test apparatus (regulation 9). The specific nature and intended function of an item of electrical apparatus will determine whether that apparatus comes within the scope, or is outside the scope, of these Regulations. The Regulations do not apply to any item of apparatus supplied or taken into service in the EEC before 28th October 1992 (regulation 10), and any item of apparatus supplied or taken into service in the EEC on or before 31st December 1995 is not required to comply with the Regulations if it complies with the requirements in force in the appropriate member State at 30th June 1992 (regulation 11). The relevant requirements in the United Kingdom are the regulations made under section 10 of the 1949 Act listed in Schedule 1. Regulations 21 to 27 provide for complete or partial exclusions for certain types of apparatus specifically covered by other Directives. Part III sets out the general requirements of the Regulations. Regulation 28 provides that relevant apparatus may not be supplied unless the requirements of regulation 30 are complied with, which are— the relevant apparatus complies with the protection requirements; the conformity assessment requirements have been complied with (regulation 31); the CE mark (the form of which is shown in Schedule 4) has been properly affixed by the manufacturer or his authorised representative (regulation 33); and the manufacturer or his authorised representative has issued an EC declaration of conformity (regulation 34). Regulation 29 provides that relevant apparatus may not be taken into service unless it conforms with the protection requirements. (The protection requirements are found in regulation 5). Regulation 35 requires that the responsible person must retain the EC declaration of conformity and, where applicable, the technical construction file or EC type-examination certificate, for ten years following the date on which the latest item of apparatus to which those documents apply is supplied. The responsible person may be required to produce such documentation (regulation 35 and 81). The conformity assessment requirements are satisfied by one of three routes— the standards route to compliance, set out in Part IV, which is satisfied where the manufacturer has applied standards in respect of the electromagnetic characteristics of the apparatus (regulation 37). Where the manufacturer or his authorised representative is in the United Kingdom he issues the EC declaration of conformity in accordance with regulation 40; the technical construction file route to compliance, set out in Part V. This is used where the manufacturer has not applied standards in respect of some or all of the EMC characteristics of the apparatus, either due to choice or because there is no appropriate standard. The manufacturer or his authorised representative must compose a technical construction file covering the electromagnetic characteristics in respect of which standards have not been applied and stating the standards which have been applied, which must contain a technical report or technical certificate issued by a competent body appointed by one of the member States. Regulations 46 to 55 and 58 and Schedule 5 make provision in respect of the appointment and functions of United Kingdom competent bodies, and related matters. Where this route is used and the manufacturer or his authorised representative is in the United Kingdom, the EC declaration of conformity is issued in accordance with regulation 57; and the EC type-examination route to compliance for radiocommunication transmission apparatus, set out in Part VI. The manufacturer or his authorised representative must obtain an EC type-examination certificate from a notified body appointed by one of the member States (regulation 60). Regulations 62 to 68 make provision in respect of the bodies which are United Kingdom notified bodies (these are the Defence Research Agency of the Ministry of Defence for maritime apparatus, the Civil Aviation Authority for aeronautical apparatus, the British Approvals Board for Telecommunications for apparatus covered by the Telecommunications Terminal Equipment Directive (91/263/EEC) and the Radiocommuications Agency of the Department of Trade and Industry for other descriptions of apparatus—the descriptions of apparatus for which each body is authorised to act are set out in Schedule 6), and their functions and related matters. Where this route is used and the manufacturer or his authorised representative is in the United Kingdom, he issues the EC declaration of conformity in accordance with regulation 70. Certain apparatus is specifically excepted from the requirement to obtain an EC type-examination certificate. Standards will prescribe the technical specifications that relevant apparatus is required to meet in respect of its EMC characteristics (regulation 37). The standards and technical construction file routes to compliance are applicable (regulations 36 and 41) for all descriptions of relevant apparatus (including radio receivers) except radiocommunication transmission apparatus (that is, transmitters and transceivers), for which the EC type examination route is the only route (regulation 59). The Regulations make provision for the charging of fees (which may include a reasonable profit) by United Kingdom competent bodies (other than government departments) (regulation 49) and the Civil Aviation Authority and the British Approvals Board for Telecommuncations in their capacities as United Kingdom notified bodies (regulation 63). Where a United Kingdom competent or notified body is a government department, provision is made for its fees in regulations made under section 56 of the Finance Act 1973 (c. 51). Part VII makes provision for the enforcement of the Regulations. Regulation 73 provides for enforcement authorities. Generally the weights and measures authorities (the Department of Economic Development in Northern Ireland) have the duty to enforce the Regulations, and the Secretary of State may also enforce them (regulation 73(1) and (2)), save in respect of certain specialised descriptions of apparatus. The Civil Aviation Authority is the enforcement authority for aeronautical apparatus, and the Director General of Electricity Supply (the Director General of Electricity Supply for Northern Ireland, in Northern Ireland) is authorised in respect of electricity meters other than those which operate by radiocommunications (regulation 73). Regulations 74 to 81 make provision in respect of the powers of enforcement authorities, these include powers tomake test purchases, to search, to seize and detain apparatus and so forth. Regulation 81 makes provision for appeals against detention of apparatus and so forth. Schedule 7 makes provision in respect of appeals against prohibition notices served under regulation 78 and regulation 80 makes provision in respect of appeals against suspension notices. Enforcement authorities, in exercisingtheir functions under these Regulations, may exercise those functions in relation to electrical apparatus which is in the possession of a consumer for the purpose of ascertaining whether any relevant apparatus does not conform to the requirements of these Regulations. Regulations 82 to 87 provide that certain actions are to be offences— supplying or taking into service apparatus in contravention of regulation 28 or 29 (regulation 82); contravening a prohibition or suspension notice (regulation 83); giving false or misleading information (regulation 84); misusing the CE mark or improperly issuing an EC declaration of conformity (regulation 85); obstructing officers of enforcement authorities, failing to assist such officers when required to do so or to comply with a requirement made by such officers under Part VII, and failure to comply with a court order under regulation 92 (requiring a matter to be remedied) (regulation 86(1)); falsely pretending to be an officer of an enforcement authority (regulation 86(2)); and failure to retain the EC declaration of conformity, EC type-examination certificate or technical construction file in accordance with regulation 35 (regulation 87). In Scotland proceedings are brought by the procurator-fiscal or Lord Advocate. Regulation 92 provides that these offences are punishable on summary conviction as follows— for offences under regulations 83, 84, and 86(2)— imprisonment for a term not exceeding three months; or a fine not exceeding level 5 on the standard scale; or both; for offences under regulations 82, 85, 86(1) and 87, a fine not exceeding level 5 on the standard scale. Level 5 of the standard scale was raised to £5,000 on 1st October 1992 in Great Britain (it remains at £2000 in Northern Ireland). The court may order relevant apparatus which does not comply with these Regulations, and other electrical apparatus in certain circumstances, to be forfeited (regulations 94 or 95). Forfeiture may be ordered on the application of an enforcement authority, or on conviction of an offence under the Regulations (in addition to the penalties referred to above). Part VIII makes provision in respect of certain miscellaneous and supplemental matters.

Read the full note and every offence in this instrument

Other offences in the same instrument

Supplying or taking into service apparatus in contravention of regulation 28 or 29regulation 82
Contravention of prohibition notice or suspension noticeregulation 83
False or misleading informationregulation 84
Misuse of the CE mark etcregulation 85(1)
Misuse of the CE mark etcregulation 85(2)
Obstruction etc of officers of enforcement authorities etcregulation 86(1)
Obstruction etc of officers of enforcement authorities etcregulation 86(2)
Failure to retain documentationregulation 87

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 Electromagnetic Compatibility Regulations 1992 Every offence this instrument creates, and its explanatory note
Energy, communications, water and utilitiesOther offences on the same subject
Offences created in 1992