UK Offence Report

1 It is an offence for a person— a to contravene regulation 7; b to fail to comply with or to contravene a…

regulation 32(1) of The Greenhouse Gas Emissions Trading Scheme Regulations 2003 (revoked)

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 It is an offence for

a person—

a to contravene regulation 7;

b to fail to comply with or to contravene

a condition of

a greenhouse gas emissions permit (except where such failure to comply or contravention falls within regulation

33 or 34);

c to fail to comply with regulation 12(1);

d to fail to comply with the requirements of an enforcement notice;

e to fail, without reasonable excuse, to comply with any requirement imposed by

a notice under regulation 8(6), 13(5), 14(8), 15(8) or 29(2);

f to make

a statement which he knows to be false or misleading in

a material particular, or recklessly to make

a statement which is false or misleading in

a material particular, where the statement is made—

i in purported compliance with

a requirement imposed by

a notice under regulation 8(6), 13(5), 14(8), 15(8) or 29(2);

ii for the purpose of obtaining the grant of

a greenhouse gas emissions permit to himself or any other person, or the variation, transfer or surrender of

a greenhouse gas emissions permit;

iii for the purpose of obtaining

a certificate under regulation 11;

iv for the purpose of obtaining

a notice authorising

a pool under regulation 21; or

v as part of the verification of

a report required under

a monitoring and reporting condition;

g to fail to correct any statement made before the entry into force of these Regulations in response to

a request for information from the Secretary of State expressed to be for the purpose of developing

a national allocation plan, if the making of that statement after the entry into force of these Regulations in purported compliance with

a requirement imposed by

a notice under regulation 29(2) would have been an offence under sub-paragraph (f);

h intentionally to make

a false entry in any record required to be kept under the condition of

a greenhouse gas emissions permit;

i with intent to deceive, to forge or use

a document issued or authorised to be issued under

a condition of

a greenhouse gas emissions permit or required for any purpose under

a condition of such

a permit or to make or to have in his possession

a document so closely resembling any such document as to be likely to deceive.

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
making a false or misleading statement
Fault element
Requires proof of a state of mind
Burden of proof
An element of the offence, for the prosecution to prove

The prosecution must prove both that the conduct happened and that it was done with the state of mind the provision names (for the purpose of obtaining, intentionally, recklessly, with intent to).

“Without reasonable excuse” here is an element of the offence rather than a defence, so its absence is for the prosecution to prove (R v Charles [2009] EWCA Crim 1570).

Classifier’s reasoning: mens rea word in the offence-creating words: intentionally, with intent to, recklessly, for the purpose of obtaining; qualified by reasonable excuse (an element; prosecution disproves once raised).

The defence, as drafted

with the requirements of an enforcement notice; e to fail, without reasonable excuse, to comply with any requirement imposed by a notice under regulation 8(6), 13(5), 14(8), 15(8) or 29(2); f to make a statement which he knows to be false or misleading in a material particular, or recklessly to make a statement which is false or misleading in

What would breach regulation 32(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. Entering a figure on a form or return that is known to be wrong under the Greenhouse Gas Emissions Trading Scheme Regulations 2003.
  2. Leaving out something the form asks for, where the omission is what makes the answer misleading.
  3. Producing a document to an official that has been altered since it was issued.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
£5,000
Maximum prison (summary)
3 months
Maximum prison (on indictment)
2 years

expressed as the statutory maximum (the prescribed sum): the same words mean £5,000 in England and Wales and £10,000 in Scotland.

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 9153 — 09153 - Contravention of Regulations (The Greenhouse Gas Emissions Trading Scheme Regulations 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
18 December 2003
In force from
31 December 2003
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 Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations are made under section 2(2) of the European Communities Act 1972. They provide the framework for a greenhouse gas emissions trading scheme for the purpose of implementing Directive 2003/87/EC of the European Parliament and the Council establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (the “Emissions Trading Directive”). The Regulations apply to the United Kingdom. Regulation 2 provides for the Scottish Ministers, Department of the Environment in Northern Ireland and National Assembly for Wales to act as appropriate authority for installations situated in their area (other than installations falling within the definition of offshore installation). The Regulations control emissions of carbon dioxide from any of the activities listed in Schedule 1 to the Regulations. Part 2 of Schedule 1 sets out rules for the interpretation of Part 1 of Schedule 1. Part 1 of the Regulations (regulations 1 to 6) sets out general provisions. Regulation 2 contains definitions including designating the regulators for installations under the scheme. The other regulations in Part 1 deal with general matters such as the service of notices under the Regulations. Part 2 deals with the need for a permit to operate an installation covered by the Regulations (regulation 7), the procedure for granting permits and the contents of permits (regulations 8 to 10), and the treatment of permits once granted (regulations 12 to 16). The conditions of permits (regulation 10) must ensure that the emissions of the installation are properly monitored and reported and that the operator surrenders within 4 months of the end of each scheme year allowances equal to the annual reportable emissions from the installation during that year. Regulation 11 enables an installation in respect of which the European Commission has provided for temporary exclusion to apply for a certificate excluding it from the scheme. Regulations 13 to 16 deal with the variation, transfer, surrender and revocation of permits. Regulation 17 provides for fees to be paid on application for a permit and in relation to the variation, transfer or surrender of permits. Part 3 deals with the allocation of allowances. Regulation 18 requires the Secretary of State to develop a national allocation plan for each phase of the scheme and Regulation 19 provides for the Secretary of State to make a final allocation decision. This power may only be exercised with the agreement of the devolved administrations in relation to installations situated in their area (other than installations falling within the definition of offshore installations). There is a default power for the Secretary of State to act where no agreement is reached if it is necessary to ensure that the United Kingdom complies with its obligations under the Emissions Trading Directive. Regulation 20 makes provision for a registry. Regulation 21 enables operators of certain installations to apply to form a pool. Part 4 (regulations 22 to 25) contains the enforcement powers under the Regulations. Part 5 (regulations 26 to 28) and Schedules 2 to 4 provide for appeals against decisions of the regulator and for appeals for the appropriate authority, responsible authority or the Secretary of State to reconsider decisions under the Regulations. Part 6 (regulations 29 to 31) sets out information gathering powers and publicity requirements. Part 7 (regulations 32 to 35) sets out offences for contraventions of the Regulations and civil penalties where an operator fails to surrender sufficient allowances to cover its specified emissions. Part 8 (regulations 36 to 37) enables the appropriate authority to give directions and guidance to regulators. Part 9 (regulation 38) and Schedule 5 deal with consequential amendments required by the introduction of the emissions trading scheme in the Regulations. A regulatory impact assessment has not been prepared for these Regulations. It is intended to prepare a full regulatory impact assessment in conjunction with the national allocation plan for the first phase of the greenhouse gas emissions trading scheme.

Read the full note and every offence in this instrument

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 0.90.

Basis
the provision says “it is an offence”; the provision says an offence is committed “if” something happens
Confidence
0.90 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