UK Offence Report

Freezing funds of listed persons

paragraph 3 of SCHEDULE of The Iraq (United Nations Sanctions) (Overseas Territories) (Amendment) (No. 2) Order 2004

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 After article

3 of the Order, insert: Freezing funds of listed persons 3A

1 Any person who, except under the authority of

a licence granted by the Governor under article 5, makes available to any person–

a any funds that he held on 22nd May 2003 for or on behalf of

a listed 23a person; or

b any funds that he holds for or on behalf of

a listed 23b person, is guilty of an offence.

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 This is the text as originally made; later amendments are not shown here.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
dealing with funds or making them available in breach of sanctions
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

is article, it is a defence for the accused to show that he took all reasonable precautions and exercised all due diligence to avoid committing the offence. .

What would breach paragraph 3 of SCHEDULE?

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. Moving, converting or paying away funds that belong to a designated person under the Iraq (United Nations Sanctions) (Overseas Territories) (Amendment) (No. 2) Order 2004, without a licence from the Treasury.
  2. Making funds or economic resources available to a designated person - which includes paying a third party who will pass on the benefit.
  3. Dealing with an asset in ignorance of the designation is still caught where the provision imposes no knowledge requirement; check the fault element stated below before assuming otherwise.

Penalty

Mode of trial
Not determined
Maximum fine
Not determined
Maximum prison (summary)
Not determined

no penalty is stated here: this instrument amends another one, and the penalty for the offence is in the instrument being amended.

No penalty was determined from this instrument. It may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence. Absence of a figure here is not evidence that the offence carries no penalty.

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

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
Status not determined
Made
13 October 2004
In force from
15 October 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 United Nations Act 1946, amends the Iraq (United Nations Sanctions) (Overseas Territories) Order 2003 to replace provisions extended to certain territories regarding exportation of restricted goods with provisions equivalent to those in the United Kingdom, and to make further provision regarding authorisation of persons by the Governor to search persons, and evidence of authorisation in relation to the investigation of suspect ships. This Order also amends the Iraq (United Nations Sanctions) (Overseas Territories) Order 2000 (the “2000 Order”) which gives effect to certain aspects of the sanctions imposed against Iraq by resolution 661 (1990) adopted by the Security Council of the United Nations on 6th August 1990, to take account of amendments contained in resolution 1483 (2003) and resolution 1518 (2003) adopted by the Security Council of the United Nations on 22nd May 2003 and 24th November 2003 respectively. Paragraph 1(1)(e) of the Schedule amends the definition of “Sanctions Committee” in the 2000 Order to take account of the new Committee established by resolution 1518 (2003) for the purposes of identifying persons subject to certain measures imposed by resolution 1483 (2003). The remaining provisions of paragraph 1 of the Schedule amend or insert definitions in the 2000 Order reflecting other changes made by the Schedule and give effect to guidance issued by the United Nations Security Council Committee established pursuant to resolution 661 (1990) on the meaning of terms used in resolution 1483 (2003). The remaining provisions of the Schedule amend the 2000 Order to make improvements in its operation. In particular, provision has been made for persons listed by the Sanctions Committee automatically to become subject to the sanctions regime without the need for the Governor so to direct. It also clarifies the powers of the Governor to direct freezing of funds. Article 6 of the Order makes transitional provisions in respect of directions given by the Governor, and funds covered by notices published, prior to the coming into force of this Order. The Order applies to the following territories: Anguilla, Bermuda, British Antarctic Territory, British Indian Ocean Territory, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn, Henderson, Ducie and Oeno Islands, St Helena, St Helena Dependencies, South Georgia and the South Sandwich Islands, Turks and Caicos Islands, and the UK Sovereign Base Areas of Akrotiri and Dhekelia in the island of Cyprus.

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 0.92.

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