Advertising HIV testing kits and services

regulation 5(2) of The HIV Testing Kits and Services Regulations 1992

Revoked
Strict liability
Alcohol licensing, gambling, smoke-free and public health

The provision has been revoked and no saving provision preserving liability for earlier conduct was found.

What the provision says

2 Subject to paragraphs (3), (4) and (5) of this regulation,
a person who advertises the provision of HIV testing services without stating, in the advertisement, that the services will be provided only by or, as the case may be, in accordance with the directions of
a registered medical practitioner shall be guilty of an offence.

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 This is the text as originally made; later amendments are not shown here.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 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.

Doing what the provision prohibits, or failing to do what it requires under the HIV Testing Kits and Services 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.

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 HIV Testing Kits and Services (Revocation) (England) Regulations 2014
Revoked on: 6 April 2014
Made: 3 March 1992
In force from: 1 April 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 make it an offence, subject to various exceptions, to sell or supply an HIV testing kit or component to a member of the public (regulation 2) to sell or supply an HIV testing kit without an accompanying warning notice (regulation 3) to provide HIV testing services which are not directed by a registered medical practitioner (regulation 4). In addition, regulation 5 places restrictions on advertisements for such kits, components and services.

Read the full note and every offence in this instrument

Other offences in the same instrument

Sale or supply of HIV testing kitsregulation 2(1)
Conditions for the sale or supply of kitsregulation 3(1)
HIV testing servicesregulation 4(1)
Advertising HIV testing kits and servicesregulation 5(1)

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 HIV Testing Kits and Services Regulations 1992 Every offence this instrument creates, and its explanatory note
Alcohol licensing, gambling, smoke-free and public healthOther offences on the same subject
Offences created in 1992