UK Offence Report

Offences and penalties

regulation 6(1) of The Controls On Pentabromodiphenyl Ether And Octabromodiphenyl Ether (No. 2) Regulations 2004 (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 Any person who contravenes regulation

4 or 5, or causes or permits another person to contravene either of those regulations, shall be 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 This is the text as originally made; later amendments are not shown here.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
contravening a requirement of the instrument
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 regulation 6(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. On these words an offence is committed where a person contravenes regulation 4 or 5, or causes or permits another person to contravene either of those regulations.
  2. Doing the thing the provision prohibits under the Controls On Pentabromodiphenyl Ether And Octabromodiphenyl Ether (No. 2) Regulations 2004, whatever the reason for doing it.
  3. Where the requirement is a positive duty, letting the time for performing it pass without performing it.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
£5,000
Maximum prison (summary)
Not determined

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

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
9 December 2004
In force from
1 January 2005
Extent
E+W+S

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 give effect to European Parliament and Council Directive 2003/11/EC and Commission Directive 2004/98/EC on pentabromodiphenyl ether and octabromodiphenyl ether. These Directives make amendments to Council Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations. These Regulations revoke and replace the Controls On Pentabromodiphenyl Ether And Octabromodiphenyl Ether Regulations 2004 (S.I 2004/371) which previously gave effect to Directive 2003/11EC. These Regulations extend to Great Britain and come into force on 1st January 2005. Regulation 3 sets out exclusions from the scope of the Regulations. Regulation 4(1)(a) prohibits the placing on the market of pentabromodiphenyl ether as a substance or as a constituent of substances or of preparations in concentrations higher than 0.1% by mass. Regulation 4(1)(b) prohibits the placing on the market of any articles which contain pentabromodiphenyl ether in concentrations higher than 0.1% by mass. Regulation 4(1)(c) prohibits the placing on the market of any articles which include any flame retardant parts which contain pentabromodiphenyl ether in concentrations higher than 0.1% by mass. The use of pentabromodiphenyl ether in concentrations higher than 0.1% by mass is also prohibited (regulation 4(2)). Regulation 4 will not apply to aircraft emergency evacuation systems before 31st March 2006. Regulation 5(1)(a) prohibits the placing on the market of octabromodiphenyl ether as a substance or as a constituent of substances or of preparations in concentrations higher than 0.1% by mass. Regulation 5(1)(b) prohibits the placing on the market of any articles which contain octabromodiphenyl ether in concentrations higher than 0.1% by mass. Regulation 5(1)(c) prohibits the placing on the market of any articles which include any flame retardant parts which contain octabromodiphenyl ether in concentrations higher than 0.1% by mass. The use of octabromodiphenyl ether in concentrations higher than 0.1% by mass is also prohibited (regulation 5(2)). Regulation 6 makes it an offence to contravene either of regulation 4 or 5 (regulation 6(1)) and specifies the maximum penalties for such an offence (regulation 6(2)). It also provides that where an offence is committed by a body corporate or a Scottish partnership, specified individuals may also be guilty of that offence if it were committed with that person’s consent or connivance, or as a result of their neglect (regulation 6(3)-(6)). Regulation 7 revokes S.I 2004/371. A Regulatory Impact Assessment and a Transposition Note in relation to these Regulations have been prepared and placed in the library of each House of Parliament. Copies of either of these documents can be obtained from Defra, Chemicals and GM Policy Division, Ashdown House, 123 Victoria Street, London SW1E 6DE.

Read the full note and every offence in this 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