Civil penalties: understatement of reportable emissions

regulation 34(1) of The Greenhouse Gas Emissions Trading Scheme Regulations 2003 (revoked)

Status not determined
Strict liability
Either way
Health and safety, environment, waste and fisheries

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 Subject to paragraph (2), where—
a in relation to an application for surrender of
a greenhouse gas emissions permit under regulation 15, the report contained in the application in accordance with regulation 15(2)(c) understates the reportable emissions of the installation to which the report relates; or
b in relation to the revocation of
a greenhouse gas emissions permit under regulation 16, the report submitted in accordance with the requirements included in
a revocation notice pursuant to regulation 16(6)(a) understates the reportable emissions from the installation to which the report relates, the operator shall be liable to
a penalty equal to the amount of the understatement of reportable emissions multiplied by the excess emissions penalty under regulation 33(3)(b) which applied to excess emissions in the year in which the understatement was made.

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 This is the text as originally made; later amendments are not shown here.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: an operator
Conduct: breaching the provision
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 an operator 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 regulation 34(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.

Doing what the provision prohibits, or failing to do what it requires under the Greenhouse Gas Emissions Trading Scheme Regulations 2003.

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.

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.
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 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

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

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)
Civil penalties: excess emissionsregulation 33(1)

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 0.68.

Basis: the provision states a penalty in older drafting
Confidence: 0.68 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 Greenhouse Gas Emissions Trading Scheme Regulations 2003 (revoked) Every offence this instrument creates, and its explanatory note
Health and safety, environment, waste and fisheriesOther offences on the same subject
Offences created in 2003