Contravention of The Biocidal Products Regulations 2001

Q: Is the instrument as a whole of The Biocidal Products Regulations 2001 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.

the instrument as a whole of The Biocidal Products Regulations 2001

Revoked
Strict liability
Set by another provision
Health and safety, environment, waste and fisheries

The provision has been revoked and no saving provision preserving liability for earlier conduct was found.

What the provision says

Contravening this instrument is an offence under section 33(1)(c) of the Health and Safety at Work etc. Act 1974. The instrument itself contains no offence-creating words.

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 This is the text as originally made; later amendments are not shown here.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 a condition of a licence, permit or consent
Fault element: Strict liability
Burden of proof: Not determined

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.

Classifier’s reasoning: contravention offences of this kind are strict as to the breach; the fault position is governed by the parent Act and was not read from it.

What would breach the instrument as a whole?

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.

Holding a valid licence but doing the thing it allows outside the hours, place or limits its conditions set under the Biocidal Products Regulations 2001.
Failing to do something a condition positively requires - a record, a notification, a monitoring step - even though the licensed activity itself is carried on properly.

Penalty

Mode of trial: Set by another provision — the instrument states the penalty by reference to an Act or to another regulation
Maximum fine: Not determined
Maximum prison (summary): Not determined

The instrument does not state a penalty itself. It sets one by reference to section 33(1)(c) of the Health and Safety at Work etc. Act 1974.

the penalty is in the parent Act, not in this instrument.

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.

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.
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 Biocidal Products (Fees and Charges) Regulations 2013 (revoked)
Revoked on: 1 September 2013
Made: 7 March 2001
In force from: 6 April 2001
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 have effect with a view, first, to enabling applications to be made for agreement at Community level that an active substance can be used in a biocidal product and, secondly, to authorising the placing on the market and use of biocidal products to which these Regulations apply. These Regulations implement as regards Great Britain Directive 98/8 of the European Parliament and the Council of 16 February 1998 concerning the placing of biocidal products on the market (O.J. No. L 123, 24.4.98), (“the Directive”). Schedule 1 of these Regulations is based on Annex V of that Directive. The principle provisions are as follows. These Regulations do not apply to certain biocidal products nor to the carriage of biocidal products by rail, road, inland waterway, sea or air. (Regulation 3 and Schedule 2.) No person shall place on the market a new active substance for use in a biocidal product unless an application to a competent authority has been made for inclusion of that new active substance in Annex I, IA or IB of the Directive. The Ministers are designated as the competent authority in Great Britain. An application must be accompanied by dossiers containing information which the Ministers must evaluate, following which they must recommend to the European Commission whether or not an active substance should be included in Annex I, IA or IB of the Directive. (Regulations 4, 5 and 6.) (The terms “active substance”, “biocidal product”, “competent authority”, “new active substance” and “place on the market” are defined in regulation 2(1). “The Ministers” is defined in regulation 2(2).) No person shall place on the market or use a biocidal product unless that biocidal product has been authorised in accordance with the provisions of the Regulations. Where a biocidal product is a low-risk biocidal product, then a registration is required. Where a biocidal product contains an active substance which is included in Annex IB of the directive then that biocidal product may only be used in a particular manner. (Regulation 8.) (The term “low-risk biocidal product” is defined in regulation 2(1).) To obtain an authorisation or a registration, a person must submit an application to the Ministers together with the information specified in the Regulations. The Ministers may grant a mutual authorisation or registration where another member State has granted an authorisation or a registration in respect of the same biocidal product and the Ministers may also grant provisional authorisations and registrations. An authorisation and a registration may be granted subjected to conditions. (Regulations 9 to 14.) The Ministers may grant an emergency authorisation where such authorisation appears necessary because of an unforeseen danger. (Regulation 15.) Provision is made for a biocidal product to be placed on the market for use in tests and experiments, including those involving the release into the environment of a biocidal product. (Regulations 16 and 17.) The Ministers may revoke an authorisation or a registration in certain circumstances. They may also modify the conditions of use subject to which an authorisation or a registration is granted and review an authorisation or a registration. (Regulations 19 and 20.) Provision is made requiring a person to whom an authorisation or a registration has been granted to notify the Ministers of information of which he is aware relating to the biocidal product in question. (Regulation 21.) The Ministers may prohibit or restrict the sale or use of a biocidal product if they consider that the biocidal product constitutes an unacceptable risk to human or animal health or to the environment. (Regulation 22.) The Ministers shall not make use of information submitted to them under the Regulations except in certain circumstances. A person providing information to the Ministers may claim confidentiality in respect of that information if he considers that disclosure might harm his industrial or commercial position. (Regulations 23, 24 and 26.) Provision is made for co-operation between applicants for, and the holders of, authorisations or registrations regarding information relating to biocidal products. Provision is also made for the exchange of information between the Ministers and the European Commission and the competent authorities in other member States. (Regulations 25 and 28.) The person responsible for first placing a biocidal product on the market is responsible for providing information to the National Poisons Information Service. The information may only be disclosed for the purposes of medical treatment of a person affected by the biocidal product. (Regulation 29.) The Regulations impose obligations concerning the packaging, labelling and advertisement of a biocidal product. (Regulations 30, 31 and 33.) An application for an authorisation or a registration of a biocidal product is to be made by, or on behalf of, the person who first places the biocidal product on the market. An applicant must have a permanent office within the Community and the application must be in English. (Regulation 34.) The Ministers must ensure that a file is kept in respect of every application for an authorisation or a registration made under the Regulations. (Regulation 35.) There is a right of appeal for any person aggrieved by certain decisions of the Ministers made under the Regulations. (Regulation 36 and Schedule 10.) Provision is made for the enforcement of the Regulations, for the payment of fees and for transitional measures. (Regulations 38, 39, and 40 and Schedules 11, 12 and 13.) A copy of the regulatory impact assessment prepared in respect of these Regulations can be obtained from the Health and Safety Executive, Economic Adviser’s Unit, Rose Court, 2 Southwark Bridge, London SE1 9HS. A copy has been placed in the Library of each House of Parliament.

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 0.70.

Basis: the penalty comes from the enabling Act rather than from this instrument
Confidence: 0.70 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 Biocidal Products Regulations 2001 Every offence this instrument creates, and its explanatory note
Health and safety, environment, waste and fisheriesOther offences on the same subject
Offences created in 2001