UK Offence Report

Offences and penalties

article 16(1) of Export of Goods, Transfer of Technology and Provision of Technical Assistance (Control) Order 2003

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

1 Any person who contravenes

a prohibition or restriction in—

a article 6, 7(1), 7(2)(a), 7(2)(b) or 7(2)(c)(ii) of this Order; or

b Article 3(1), 4(2), 4(3) or 21(1) of the Regulation in respect of the transfer of software and technology, shall be guilty of an offence and liable on summary conviction to

a fine not exceeding level

3 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 This is the text as originally made; later amendments are not shown here.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
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 16(1)?

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 Export of Goods, Transfer of Technology and Provision of Technical Assistance (Control) Order 2003, 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
Either way — magistrates’ court or Crown Court
Maximum fine
Not determined
Standard scale
Level 3
Maximum prison (summary)
6 months
Maximum prison (on indictment)
2 years

the level is stated but no money value is given: this instrument extends outside the United Kingdom, where the standard scale set by s.122(1) of the Sentencing Act 2020 does not run.

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

The Ministry of Justice records offences under this instrument against offence code 9828 — 09828 - Triable either way offences under Export of Goods, Transfer of Technology and Provision of Technical Assistance (Control) Order 2003. That code may cover several provisions of the instrument, so a count against it is not a count of prosecutions under this provision alone.

No published per-offence figure was found for this provision. Offences created by statutory instrument very largely do not have their own code in the MoJ’s Outcomes by Offence data tool. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
30 October 2003
In force from
1 May 2004
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, made under the Export Control Act 2002, establishes a new framework for the control of strategic goods, software and technology. This Order brings together controls on the export or transfer of military and dual-use goods, software and technology, controls on goods, software and technology related to weapons of mass destruction (WMD) and the provision of WMD related technical assistance. The controls in this Order apply to persons in the United Kingdom and in respect of certain provisions, to United Kingdom persons anywhere in the world. The Order consolidates existing controls on the export of military goods, software and technology in physical form, previously provided for by the Export of Goods (Control) Order 1994 (S.I. 1994/1191), with the provisions of the Dual-Use Items (Export Control) Regulations 2000 (S.I. 2000/2620)) (the DUEC). The DUEC gave effect in the United Kingdom to certain provisions of Council Regulation (EC) No. 1334/2000 of 22 June 2000, (O.J. No. L 159, 30.06.2000 p.1.) which set up a Community regime for the control of exports of dual-use items and technology (the Regulation). Military and para-military goods, software and technology whose export or transfer is controlled are specified in Schedule 1 to this Order. Dual-use goods, software and technology, the export or transfer of which, are controlled in addition to those set out in the Annexes to the Regulation, are specified in Schedule 2. This Order imposes WMD end-use controls on “any relevant use” in connection with WMD. A relevant use is any use in connection with the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons or other nuclear explosive devices, or the development, production, maintenance or storage of missiles capable of delivering such weapons. In addition to the consolidation of existing export control provisions, the Order also introduces the following new controls on: a the transfer of listed military technology in Schedule 1 by electronic means. Electronic transfer includes transfers by fax, e-mail or telephone; b the transfer by any means of technology intended for use in connection with WMD or a related missile programme. This supplements existing end-use controls on the physical export of goods, software and technology and the electronic transfer of technology contained in the Regulation. The new control will apply to anyone in the United Kingdom or a United Kingdom person anywhere in the world who communicates technology which the provider knows or has been informed by Government, is or might be intended for use outside the European Union in connection with WMD or missiles capable of delivering WMD; and c the provision of technical assistance in relation to WMD. This control will apply to anyone in the United Kingdom or to any United Kingdom person abroad who provides or facilitates the provision of technical assistance outside the United Kingdom where he knows or is informed by the Government, that it is or may be intended for use in connection with WMD or missiles capable of delivering WMD. This control, together with the WMD transfer controls, implements the European Joint Action of 22 June 2000 concerning the control of technical assistance related to certain military end-uses (2000/401/CFSP). The Order is divided into six parts: Part I deals with controls on the export of military goods, dual-use goods and goods in transit with a WMD end-use; Part II deals with controls on the electronic transfer of military and dual-use technology and the transfer of technology with a WMD end-use by both electronic and non- electronic means; Part III deals with controls on the provision of WMD technical assistance; Part IV sets out exceptions to the controls in Parts I, II and III; Part V provides for the granting of licences, record keeping and appeals. The appeals procedure in article 15 is new and sets out the procedure for appealing against any decision of the Secretary of State to refuse, suspend or revoke any licence issued under this order or the Regulation. Appeals must be made within 28 days of the date of the written notification recording the Secretary of State’s decision; and Part VI sets out the penalties and means of enforcement for breach of the controls in the Regulation and Parts I, II and III of this Order. In article 16 the maximum penalty for the intentional breach of controls on exports, transfer of technology and technical assistance is set at 10 years, the maximum penalty permitted under section 7(1) of the Export Control Act 2002. Article 24 of this Order revokes the DUEC but provision is made for the continuation of all licences issued before 1st May 2004 for the duration of their original validity and for the DUEC to continue to have effect in respect of any export which occurs before 1 May 2004. Guidance issued pursuant to Section 9 of the Export Control Act 2002 on the operation of these controls, and a full regulatory impact assessment of the effect that this instrument will have on the costs of business, are available from http://www.dti.gov.uk/export.control/ or the ECO help-line–Telephone (020) 7215 8070, Fax (020) 7215 0558 or E-mail: ECO.help@dti.gsi.gov.uk.

Read the full note and every offence in this instrument

What Parliament said

Mentions of this instrument in Hansard. Parliamentary material is reused under the Open Parliament Licence v3.0.

Other offences in the same 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