Powers of inspectors

Q: Is regulation 9(2) of The Avian Influenza (Preventive Measures) Regulations 2005 a strict liability offence?

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.

regulation 9(2) of The Avian Influenza (Preventive Measures) Regulations 2005

Revoked
Strict liability
Dogs, animals, hunting and wildlife

The provision has been revoked and no saving provision preserving liability for earlier conduct was found.

What the provision says

2 Any person who defaces, obliterates or removes any mark applied under paragraph (3)(c) 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 This is the text as originally made; later amendments are not shown here.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: 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 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 9(2)?

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.

On these words an offence is committed where a person defaces, obliterates or removes any mark applied under paragraph (3)(c).
Doing what the provision prohibits, or failing to do what it requires under the Avian Influenza (Preventive Measures) Regulations 2005.

Penalty

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

no penalty is stated in this instrument; it may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence.

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.

Animal cruelty: definitive guideline Magistrates' courts in England and Wales · in force from 1 July 2017
Covers cruelty to and neglect of animals, and the associated disqualification and deprivation orders.
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 Avian Influenza (Preventive Measures) (No 2) Regulations 2005
Revoked on: 9 December 2005
Made: 28 October 2005
In force from: 28 October 2005
Extent: E

How this was established: the instrument was revoked by a later instrument found in this corpus.

What the instrument is for

These Regulations give effect to Commission Decision 2005/734/EC laying down biosecurity measures to reduce the risk of transmission of highly pathogenic avian influenza caused by influenza A virus of subtype H5N1 from birds living in the wild to poultry and other captive birds and providing for an early detection system in areas at particular risk (OJ No L 274, 20.10.2005, p. 105), as amended by Commission Decision 2005/745 (OJ No L 279, 22.10.2005, p.79). These Regulations require the Secretary of State to evaluate the risk of the transmission of avian influenza virus and to take appropriate measures to reduce that risk (regulation 4(1) and (2)). Regulation 4(2) and (3) provides for the Secretary of State to declare avian influenza prevention zones or to serve notices on premises at risk and lists the measures which may be imposed in zones and premises. These include the housing of poultry and the feeding of poultry indoors. Regulation 5 prohibits the holding of gatherings of birds anywhere in England unless they are licensed by the Secretary of State after a risk assessment. Regulation 6(1) requires keepers of 50 or more poultry on commercial poultry premises anywhere in England to keep written records of their poultry and of other information, including whether poultry have access to the open air. Regulation 6(2) requires keepers to notify the Secretary of State of this information. The date by which they must do this will be specified in further Regulations. Regulation 7 allows the Secretary of State to require other keepers to provide some or all of this information if she considers this necessary. Regulations 8 and 9 relate to the monitoring of premises and the powers of inspectors appointed by the Secretary of State and by local authorities. Regulation 10 provides for provisions in the Animal Health Act 1981 relating to enforcement and offences to apply to these Regulations. Regulation 11 provides default powers for inspectors in case of any breach of the Regulations. A regulatory impact assessment has not been prepared in respect of these Regulations.

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

This provision on legislation.gov.uk The authoritative text. Check it before relying on anything here.
The Avian Influenza (Preventive Measures) Regulations 2005 Every offence this instrument creates, and its explanatory note
Dogs, animals, hunting and wildlifeOther offences on the same subject
Offences created in 2005