UK Offence Report

Directions in the interests of national security

article 2(5) of The Water Industry (Scotland) Act 2002 (Directions in the Interests of National Security) Order 2002

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

5 A person who, in contravention of paragraph (4) above, discloses anything is guilty of an offence and liable, on conviction on indictment, to imprisonment for

a term not exceeding two years or to

a fine or to both.

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 This is the text as originally made; later amendments are not shown here.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
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 article 2(5)?

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. On these words an offence is committed where a person discloses anything.
  2. Doing the thing the provision prohibits under the Water Industry (Scotland) Act 2002 (Directions in the Interests of National Security) Order 2002, whatever the reason for doing it.
  3. Where the requirement is a positive duty, letting the time for performing it pass without performing it.

Penalty

Mode of trial
Indictable only — tried in the Crown Court
Maximum fine
Unlimited
Maximum prison (summary)
Not determined
Maximum prison (on indictment)
2 years

'to a fine' with no stated maximum.

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
Status not determined
Made
1 May 2002
In force from
31 May 2002
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Order) — the explanatory note published with the instrument, © Crown copyright.

This Order makes provision consequential on the Water Industry (Scotland) Act 2002 which, amongst other things, established Scottish Water and repealed section 117 of the Local Government etc. (Scotland) Act 1994 (“the 1994 Act”). Section 117 of the 1994 Act enabled the Secretary of State to give directions to the new water and sewerage authorities (now replaced by Scottish Water) in the interests of national security or for mitigating the effects of any civil emergency. This provision was amended (in part) by article 3 of and Schedule 2 to the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc) Order 1999 (“the 1999 Order”), so that the Scottish Ministers could also give directions, after consultation with the Secretary of State. The purpose of this Order is to confer on the Secretary of State and the Scottish Ministers the power to give directions to Scottish Water in the interests of national security or for mitigating the effects of any civil emergency. Article 2 enables the Secretary of State, after consultation with Scottish Water, to give it directions in the interests of national security or for mitigating the effects of any civil emergency which may occur or directions to do or omit to do a specified thing, in the interests of national security or for mitigating the effects of any civil emergency which has or may occur. It also makes provision as regards the disclosure of directions. Any person who contravenes the disclosure provision is guilty of an offence and liable on conviction on indictment to imprisonment for up to 2 years and/or a fine. Article 3 provides that specified functions conferred on the Secretary of State under article 2 of the Order are, so far as they are exercisable in or as regards Scotland, exercisable by the Scottish Ministers concurrently with the Secretary of State. Any such functions are exercisable by the Scottish Ministers only after consultation with the Secretary of State. Article 4 makes provision for the laying of directions before the Scottish Parliament or each House of Parliament, as appropriate. It mirrors the former provisions under section 117 of the 1994 Act, as amended by article 6 of and Schedule 5 to the 1999 Order.

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