Provision of assistance, advice or training

article 5 of The Burma (Restrictive Measures) (Overseas Territories) Order 2004

Revoked
Strict liability
Either way
International sanctions, export control and trade restrictions

The provision has been revoked and no saving provision preserving liability for earlier conduct was found.

What the provision says

5 Any person who, except under the authority of
a licence granted by the Governor under this article, directly or indirectly provides to any person, entity or body in, or for use in, Burma any assistance, advice or training related to military activities or to the provision, manufacture, maintenance or use of any restricted goods shall be guilty of an offence under this Order, unless he proves that he did not know and had no reason to suppose that the assistance, advice or training in question was to be provided to
a person, entity or body in, or for use in, Burma.

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 This is the text as originally made; later amendments are not shown here.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: breaching the provision
Fault element: Strict liability
Burden of proof: Legal burden on the defendant

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 gives a defence the defendant must prove, on the balance of probabilities. A legal burden of that kind can be read down to a merely evidential one under section 3 of the Human Rights Act 1998 where placing it on the defendant would be disproportionate (R v Lambert [2001] UKHL 37; Sheldrake v DPP [2004] UKHL 43).

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision; other provisions of the same instrument use a mens rea word while this one does not (the Cundy v Le Cocq contrast).

The defence, as drafted

icted goods shall be guilty of an offence under this Order, unless he proves that he did not know and had no reason to suppose that the assistance, advice or training in question was to be provided to a person, entity or body in, or for use in, Burma.

What would breach article 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.

Doing what the provision prohibits, or failing to do what it requires under the Burma (Restrictive Measures) (Overseas Territories) Order 2004.

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

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

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: Revoked
Revoked by: The Burma (Restrictive Measures) (Overseas Territories) Order 2009
Revoked on: 19 November 2009
Made: 27 July 2004
In force from: 29 July 2004
Extent: Not stated

How this was established: the instrument was revoked by a later instrument found in this corpus.

What the instrument is for

This Order applies to each of the British overseas territories listed in Schedule 1. It imposes restrictive measures in respect of Burma and the continuing serious violations of human rights in that country and the failure of its military authorities to enter into substantive discussions with the democratic movement concerning a process leading to national reconciliation, respect for human rights and democracy. These measures include the prohibition of the delivery or supply of arms and related material and equipment that might be used for internal repression to Burma, and the prohibition of making available funds, financial assets or economic resources to listed persons and the freezing of their funds, financial assets or economic resources. It gives effect to measures adopted by the European Union in Council Common Position 2004/423/CFSP.

Read the full note and every offence in this instrument

Other offences in the same instrument

Failure to disclose knowledge or suspicion of measuresarticle 10(1)
Customs powers to demand evidence of destination which goods reacharticle 11
Any person who has done any act under the authority of a licence granted by the Governor under this Order…article 12
If for the purposes of obtaining any licence under this Order any person makes any statement or furnishes…article 12(1)
Any person who has done any act under the authority of a licence granted by the Governor under this Order…article 12(2)
Declaration as to goods: power of searcharticle 13(3)
Declaration as to goods: power of searcharticle 13(4)
Provisions supplementary to articles 14 to 16article 17(3)
Supply of restricted goodsarticle 3
Exportation of restricted goods to Burmaarticle 4(3)
Use of ships, aircraft and vehicles: restricted goodsarticle 6(3)
Making funds, financial assets or economic resources available to any listed personarticle 7

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 Burma (Restrictive Measures) (Overseas Territories) Order 2004 Every offence this instrument creates, and its explanatory note
International sanctions, export control and trade restrictionsOther offences on the same subject
Offences created in 2004