Power to operate and use tramway system

Q: Is paragraph 34(3) of SCHEDULE 2 of The Transport and Works (Model Clauses for Railways and Tramways) 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 34(3) of SCHEDULE 2 of The Transport and Works (Model Clauses for Railways and Tramways) Order 1992

Revoked
Strict liability
Summary only
Transport: maritime, aviation, rail and harbours

The provision has been revoked and no saving provision preserving liability for earlier conduct was found.

What the provision says

3 Any person who, without the consent of the undertaker or other reasonable excuse, uses the apparatus mentioned in paragraph (2) above shall be guilty of an offence and liable on summary conviction to
a fine not exceeding level
2 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 This is the text as originally made; later amendments are not shown here.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: acting without the licence or authorisation required
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; qualified by absence of consent (an element).

What would breach paragraph 34(3) of SCHEDULE 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.

Starting the activity before the licence is granted, rather than on the day it takes effect under the Transport and Works (Model Clauses for Railways and Tramways) Order 1992.
Carrying on after a licence has expired, been surrendered or been suspended.
Relying on somebody else's authorisation, where the provision requires the person doing the act to hold one.

Penalty

Mode of trial: Summary only — tried in a magistrates’ court
Maximum fine: £500
Standard scale: Level 2
Maximum prison (summary): Not determined

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.

Sentencing organisations: fines and the means of a corporate defendant All courts in England and Wales
How a fine on a company is arrived at from its turnover. Relevant far beyond the guidelines that state it, because a very large share of the offences in this corpus can only be committed by an organisation.
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 Transport and Works (Model Clauses for Railways and Tramways) Order 2006
Revoked on: 8 August 2006
Made: 18 December 1992
In force from: 15 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 Order prescribes model clauses for inclusion in orders made under section 1 of the Transport and Works Act 1992 (“the Act”). These orders authorise the construction and operation of certain systems of transport, and ancillary matters. The use of the prescribed clauses is not mandatory: they may be omitted entirely from orders if not appropriate or may be adapted to meet special requirements. Schedule 1 sets out model clauses relating to railways, which term is widely defined in the Act. The term includes mainline and underground railways and also mountain railways, mineral lines, pier lines, funiculars and railways operated by bodies concerned with the preservation of the railway heritage. Schedule 2 sets out model clauses relating to tramways, which term is also defined in the Act. The term includes light rail and other systems which are predominantly street-running. The subjects covered by the model clauses are listed in the table of arrangement at the head of each Schedule.

Read the full note and every offence in this instrument

Other offences in the same instrument

Maintenance of approved works etcparagraph 28(2) of SCHEDULE 1
Disclosure of confidential informationparagraph 29 of SCHEDULE 1
Trespass on tramroadsparagraph 40(1) of SCHEDULE 2
Obstruction of construction of tramwayparagraph 41 of SCHEDULE 2
Disclosure of confidential informationparagraph 45 of SCHEDULE 2

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 Transport and Works (Model Clauses for Railways and Tramways) Order 1992 Every offence this instrument creates, and its explanatory note
Transport: maritime, aviation, rail and harboursOther offences on the same subject
Offences created in 1992