UK Offence Report

17 An intermediary agency that discloses information in contravention of regulation 7 without reasonable…

regulation 17 of The Adoption Information and Intermediary Services (Pre-Commencement Adoptions) Regulations 2005

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

17 An intermediary agency that discloses information in contravention of regulation

7 without reasonable excuse is guilty of an offence and is liable on summary conviction to

a fine not exceeding level

5 on the standard scale.

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 This is the text as originally made; later amendments are not shown here.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
An element of the offence, for the prosecution to prove

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.

“Without reasonable excuse” here is an element of the offence rather than a defence, so its absence is for the prosecution to prove (R v Charles [2009] EWCA Crim 1570).

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision; qualified by reasonable excuse (an element; prosecution disproves once raised).

The defence, as drafted

that discloses information in contravention of regulation 7 without reasonable excuse is guilty of an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

What would breach regulation 17?

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. Doing the thing the provision prohibits under the Adoption Information and Intermediary Services (Pre-Commencement Adoptions) Regulations 2005, whatever the reason for doing it.
  2. Where the requirement is a positive duty, letting the time for performing it pass without performing it.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
£5,000
Standard scale
Level 5
Maximum prison (summary)
Not determined

this is the level 5 value when the instrument came into force (2005-12-30); the standard scale is keyed to the date the offence was committed, and for conduct today the same words mean an unlimited fine.

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
22 March 2005
In force from
30 December 2005
Extent
E

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 make provision under section 98 of the Adoption and Children Act 2002 (“the Act”) for the purposes of assisting persons adopted before 30th December 2005 to obtain information about their adoption and to facilitate contact between those persons and their birth relatives. The regime for disclosure of information about adoptions on or after 30th December 2005 is set out in sections 56 to 65 of the Act and regulations under those sections. Part 1 confers functions on registered adoption support agencies and adoption agencies (“intermediary agencies”) that are willing to provide intermediary services in respect of adoptions before 30th December 2005. Agencies providing such services are required to do so in accordance with these Regulations. Part 2 deals generally with applications for intermediary services. An intermediary agency may accept an application for an intermediary service from an adopted person or a relative of an adopted person in respect of any adoption before 30th December 2005 but they must give priority to applications in respect of adoptions before 12th November 1975. The intermediary agency is not required to proceed with an application where it does not consider that it would be appropriate. Regulation 6 sets out the factors that the intermediary agency should take into account in making that decision. Regulation 7 requires the intermediary agency to obtain the informed consent of the subject of the application before disclosing information about him that would identify him to the applicant or enable him to be traced. Regulation 8 enables the adopted person to register a veto with the appropriate adoption agency in relation to an application under these Regulations. Regulation 10 requires the intermediary agency to provide information about counselling and secure counselling services in relation to applications for intermediary services. Part 3 sets out the procedure to be followed by the intermediary agency in processing an application. The first steps include confirming the identity of the applicant and establishing that he is related to the subject. The intermediary agency should then identify the adoption agency that holds the records relating to the adoption (seeking assistance where appropriate from the Registrar General and the court). It should then contact that agency to seek its views on the application and to seek such information as may be necessary to trace the subject of the application (regulation 12). Where that information cannot be obtained from the adoption agency, the intermediary agency may seek such information from the Registrar General as may assist in processing the application (regulation 14). Regulations 14 and 15 require the Registrar General and the court to provide information when requested. Regulation 16 authorises certain disclosures for the purpose of an application under these Regulations. Part 4 deals with miscellaneous matters. Regulation 17 creates an offence of disclosure of information in contravention of Regulation 7. Regulation 18 provides for fees that may be charged by intermediary agencies, adoption agencies, the Registrar General and the court in relation to applications under these Regulations. A Regulatory Impact Assessment has been carried out for these Regulations and a copy has been placed in the library of each House of Parliament. Copies of the Regulatory Impact Assessment can be obtained from the Department for Education and Skills' website http://www.dfes.gov.uk/ria/.

Read the full note and every offence in this instrument

What Parliament said

Mentions of this instrument in Hansard. Parliamentary material is reused under the Open Parliament Licence v3.0.

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”; the provision states liability on summary conviction
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