Failure to comply with licence conditions

article 11(3) of The Trade in Goods (Control) Order 2003

• Status not determined
• Strict liability
• Either way
• International sanctions, export control and trade restrictions

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

3 No person shall be guilty of an offence under paragraph (1) where—

a the licence condition in question had been previously modified by the Secretary of State; and

b the alleged failure to comply would not have been

a failure had the licence not been so modified; and

c the condition with which he failed to comply was modified by the Secretary of State after the doing of the act authorised by the licence.

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 This is the text as originally made; later amendments are not shown here.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

failing to do something the instrument requires

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 11(3)?

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. Not doing what the provision requires under the Trade in Goods (Control) Order 2003, by the time it requires it to be done.
2. Doing it, but not in the manner or to the standard the instrument specifies.

Penalty

Mode of trial

Either way — magistrates’ court or 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.

• 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.

• Fraud, bribery and money laundering offences: definitive guideline Magistrates' courts and the Crown Court in England and Wales · in force from 1 October 2014

  Covers fraud, false accounting, bribery and money laundering, including offences committed by organisations.

• Imposition of community and custodial sentences: definitive guideline All courts in England and Wales

  When a community order or custody is justified at all, and the presumption against short custodial sentences.

• 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

The Ministry of Justice records offences under this instrument against offence code 19650 — 19650 - Contravention of prohibition imposed by Article 3 or 4 of Trade in Goods (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, controls the trade between one overseas country and another of military and para-military goods listed in Schedule 1 to the Export of Goods, Transfer of Technology and Provision of Technical Assistance Order 2003 (S.I. 2003/2764). In this Order these goods are referred to as “controlled goods” or “restricted goods”. Restricted goods are set out in the Schedule to this Order. The controls in this Order do not apply to software or technology or to activities connected to trade in controlled goods that are situated in the United Kingdom (with the exception of goods in transit via the United Kingdom). In relation to restricted goods, article 3 of this Order prohibits any person within the United Kingdom, or a United Kingdom person anywhere in the world, from supplying or delivering, or doing any act calculated to promote the supply or delivery of, restricted goods without a licence from the Secretary of State. In relation to controlled goods, article 4 of this Order prohibits any person in the United Kingdom from transferring, acquiring or disposing, or arranging or negotiating a contract for the acquisition or disposal of controlled goods without a licence from the Secretary of State. In addition, the provisions on controlled goods prohibit any person in return for a fee, commission or other consideration from doing any act or agreeing to do any act, without a licence, which would promote the arrangement or negotiation of a contract for the acquisition or disposal of controlled goods where that person knows or has reason to believe that the goods will be moved from one third country to another third country. The Order exempts persons whose sole involvement in the movement of controlled goods from one overseas country to another is to provide transport, finance, insurance or general advertising or promotion services. The remaining articles in this Order do the following: Articles 5–7 provide for the issuing of licences by the Secretary of State, registration, record keeping and inspection and licence refusals and appeals; Articles 8–12 provide for offences, enforcement and penalties for the breach of the controls created by this Order; Article 13 sets out the purposes for which information obtained by the Secretary of State, or the Commissioners for Customs and Excise, can be disclosed; and Article 14 of this Order states the address where notices to be given by any person under this Order are to be sent. Guidance issued pursuant to section 9 of the Export Control Act 2002, on the operation of these controls and a full regulatory impact assesment of the effect that this instrument will have on the costs of business is 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.

• Export Controls Commons · 6 November 2003 · Sir John Stanley

  I will leave to the hon. Gentleman the choice terminology of criticism that he made of those on his own Front Bench. I endorse the broad thrust of what he said, but I hope that we can achieve some accommodation. In certain areas, the Government have made important progress in prior consultation. They have made important changes in relation to the prior scrutiny of legislation and of major decisions. On 18 March,…

• Export Control Act Commons · 17 December 2003 · The Minister for Europe (Mr. Denis MacShane)

  The Government are introducing new controls to license the activities of those who trade in military goods between overseas countries (also known as trafficking and brokering); transfer technology for military goods by electronic means (e-mail, fax, etc.); transfer technology, by any means, for use in connection with WMD; and provide technical assistance for use in connection with WMD.These controls are contained…

• Quadripartite Committee Reports Commons · 16 March 2006 · Sir John Stanley

  The items concerned are missiles with a range of 300 km and more, and torture equipment. The answer to the question of how trafficking and brokering are defined is that they are not defined in the legislation at all. They are instead defined by particular types of transactions taking place in particular places. The details are to be found in article 3(2) of the Trade in Goods (Control) Order 2003. That is the ambit…

Other offences in the same instrument

• Misleading applications for licences etcarticle 10(1)
• Failure to comply with licence conditionsarticle 11(1)
• Failure to comply with licence conditionsarticle 11(1)(b)
• Any person who contravenes a prohibition in article 3 or 4 shall be guilty of an offence and liable on…article 9(1)
• Any person knowingly concerned in the supply, delivery, transfer, acquistion or disposal of any restricted…article 9(2)
• Any person knowingly concerned in the supply or delivery of any restricted goods with intent to evade any…article 9(3)

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 Trade in Goods (Control) Order 2003 Every offence this instrument creates, and its explanatory note
• International sanctions, export control and trade restrictionsOther offences on the same subject
• Offences created in 2003