UK Offence Report

Separation of accounts between transport operations and infrastructure management and prohibition of…

regulation 5(2) of The Railways Regulations 1992

The provision has been revoked and no saving provision preserving liability for earlier conduct was found.

What the provision says

2 Without prejudice to any civil remedy that might be available to any person,

a railway undertaking which, without reasonable excuse, contravenes or fails to comply with paragraph (1) of this regulation shall be guilty of an offence and liable on summary conviction to

a fine not exceeding level

5 on the standard scale.

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 This is the text as originally made; later amendments are not shown here.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
Strict liability
Burden of proof
An element of the offence, for the prosecution to prove

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.

“Without reasonable excuse” here is an element of the offence rather than a defence, so its absence is for the prosecution to prove (R v Charles [2009] EWCA Crim 1570).

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision; qualified by reasonable excuse (an element; prosecution disproves once raised).

The defence, as drafted

ht be available to any person, a railway undertaking which, without reasonable excuse, contravenes or fails to comply with paragraph (1) of this regulation shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

What would breach regulation 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.

  1. Doing the thing the provision prohibits under the Railways Regulations 1992, whatever the reason for doing it.
  2. Where the requirement is a positive duty, letting the time for performing it pass without performing it.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
£5,000
Standard scale
Level 5
Maximum prison (summary)
Not determined

this is the level 5 value when the instrument came into force (1993-01-01); 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 Railways Regulations 1998
Revoked on
27 June 1998
Made
7 December 1992
In force from
1 January 1993
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 91/440/EEC of 29th July on the development of the Community’s railways (OJ No. L237, 24.8.91, p.25; the text of the Directive is subject to the amendments in a corrigendum published in OJ No. L305, 6.11.91, p.22) (“the Council Directive”) (regulation 2(1)). With the exception of certain provisions in Schedule 2, the Regulations do not apply to Northern Ireland (regulation 1(2)), to railway undertakings whose activity is limited to the provision of solely urban, suburban or regional services (defined in Article 3 of the Council Directive) or to the management of the Channel Tunnel system or the operation of the Channel Tunnel shuttle service (regulation 3). The Regulations— i modify certain statutory provisions about the control by the Secretary of State of the activities of the British Railways Board so that the Board’s freedom in respect of certain matters specified in paragraph 3 of Article 5 of the Council Directive can only be controlled by virtue of such provisions if this would be consistent with general policy guidelines and investment and financing plans, determined by the Secretary of State (regulation 4); ii require any railway undertaking (defined in Article 3 of the Council Directive) which is also an infrastructure manager (so defined) to prepare and maintain accounts separately for the provision of transport services and infrastructure management and to ensure that there is no transfer of state aid between these two activities as required by Article 6.1 of the Council Directive (regulation 5); iii lay down requirements as to the fees to be charged by infrastructure managers for the use of railway infrastructure by international groupings (defined in Article 3 of the Council Directive) and railway undertakings (regulation 6); and iv in accordance with Article 10 of the Council Directive, confer in respect of railway facilities and ancillary services (as defined in regulation 2(2)) rights of access and transit on international groupings and railway undertakings for international services, subject to safety requirements in accordance with Article 7.1 of the Council Directive (regulation 8). Breach of regulation 5(1) (requiring separation of accounts between transport operations and infrastructure management and prohibiting the transfer of state aids between those two activities) is an offence subject to a fine on summary conviction not exceeding £5000 (regulation 5(2)). The Secretary of State is to appoint an International Rail Regulator to deal with appeals and disputes concerning the grant and continuance of such access and transit rights with the advice of the Health and Safety Executive on safety matters, but is to deal with disputes about safety matters himself after consulting the Health and Safety Executive (regulations 7 and 9). International groupings and railway undertakings are given statutory authority in respect of the provision of international services in exercise of rights granted under the Regulations (regulation 10). International groupings and railway undertakings are not to be common carriers in respect of the provisions of such services (regulation 11). Certain enactments concerning railways are applied in respect of such services whether or not they would otherwise apply (regulation 12). Any person affected by a refusal or failure to comply with regulation 5(1) (separation of accounts and prohibition of transfer of state aid), regulation 6 and Schedule 1 (fees for the use of railway infrastructure), regulation 8(5), (6), (7), (8), (9), (10) or (12) (certain requirements in respect of rights of access to, or transit of railway infrastructure) or a notice or decision under regulation 9(3), (4) or (8) (notices and decisions of the International Rail Regulator or the Secretary of State) who suffers loss, damage or injury caused by the refusal or failure to comply may bring a civil action, and the International Rail Regulator may seek to enforce compliance by civil proceedings for an injunction or interdict (regulation 14). The enforcement and offences provisions of the Health and Safety at Work etc Act 1974 are applied to regulation 8(6) which imposes a duty on any infrastructure manager which grants access or transit rights to include in the agreement granting such rights such conditions concerning safety as are necessary from time to time to protect people from the dangers arising from the operation of railways, and to any breach of the other provisions of that regulation concerning safety (regulation 15).

Read the full note and every offence in this 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