UK Offence Report

Powers of inspectors

regulation 12(2) of The Avian Influenza (Preventive Measures) (No 2) Regulations 2005

The provision has been revoked and no saving provision preserving liability for earlier conduct was found.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) 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 This is the text as originally made; later amendments are not shown here.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 12(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.

  1. On these words an offence is committed where a person defaces, obliterates or removes any mark applied under paragraph (3).
  2. Doing what the provision prohibits, or failing to do what it requires under the Avian Influenza (Preventive Measures) (No 2) Regulations 2005.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
£5,000
Maximum prison (summary)
3 months

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
Revoked
Revoked by
The Avian Influenza (Preventive Measures) (England) Regulations 2006
Revoked on
13 November 2006
Made
8 December 2005
In force from
9 December 2005
Extent
E

How this was established: the instrument was revoked by a later instrument found in this corpus.

What the instrument is for

(This note is not part of the Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations revoke and replace the Avian Influenza (Preventive Measures) Regulations 2005 (S.I. 2005/2989) (“the main Regulations”) and the Avian Influenza (Preventive Measures in Zoos) Regulations 2005 (S.I. 2005/2990) (“the Zoos Regulations”). The measures introduced by the main Regulations and the Zoos Regulations are combined and largely reproduced in these Regulations, with the following changes: the reference in the main Regulations to Commission Decision 2005/734/EC (OJ No. L274, 20.10.2005, p. 105) is updated to include reference to amending Commission Decision 2005/855 (OJ No. L 316, 2.12.2005, p. 21); February 28, 2006 is specified as the date by which information on commercial poultry premises must be notified to the Secretary of State (regulation 6(2)); and regulation 13(1) sets out the penalties for committing an offence under the Regulations. It provides for imprisonment up to 3 months on summary conviction. Regulation 10(1)(h) of the main Regulations and regulation 7(1)(h) of the Zoos Regulations incorrectly applied the offence provision in section 75 of the Act, which provides for imprisonment for up to six months. These Regulations continue to 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/EC (OJ No L 279, 22.10.2005, p. 79) and Commission Decision 2005/855/EC (OJ No L 316, 2.12.2005, p. 21); and Commission Decision 2005/744/EC laying down the requirements for the prevention of highly pathogenic avian influenza virus caused by influenza A virus of subtype H5N1 in susceptible birds kept in zoos in the Member States (OJ No. L 279, 22.10.2005, p. 75). 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 poultry gatherings unless they are licensed by the Secretary of State after a risk assessment. Regulation 6(1) requires keepers of 50 or more poultry 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 by 28 February 2006. Regulation 7 allows the Secretary of State to require other keepers to provide some or all of this information is she considers this necessary. Regulation 8 relates to the monitoring of premises where birds are kept. Regulations 9 and 10 provide for measures to be taken in zoos. They require the Secretary of State to evaluate the risk of the transmission of avian influenza virus to susceptible birds in zoos and to take appropriate measures to reduce such risk (Regulation 9(1) and (2)). Regulation 9(2) provides for the Secretary of State to declare avian influenza prevention (zoos) zones or to serve notices of restrictions on premises. Regulation 9(3) sets out the measures which may be applied. Regulation 10 provides for the Secretary of State to vaccinate or require the vaccination of susceptible birds in zoos if she thinks it necessary. Regulations 11 to 14 provide a duty to comply with restrictions and set out measures on enforcement and offences. Regulation 13 provides for provisions in the Animal Health Act 1981 relating to enforcement and offences to apply to these Regulations. Regulation 14 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