UK Offence Report

Enforcement of Regulation 1935/2004

regulation 4 of The Materials and Articles in Contact with Food (England) Regulations 2005 (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

4 Subject to the provisions of Article 27 (transitional arrangements), any person who contravenes any of the following provisions of Regulation 1935/2004 is guilty of an offence —

a Article 3 (general requirements);

b Article 4 (special requirements for active and intelligent materials and articles);

c Article 11(4) and (5) (provisions relating to Community authorisation);

d Article 15(1), (2), (3), (4), (7) and (8) (labelling);

e Article 16(1) (declaration of compliance);

f on or after 27th October 2006, Article 17(2) (traceability).

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 This is the text as originally made; later amendments are not shown here.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
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.

The defence, as drafted

regulation 8(3), (4), (6) or (7), or regulation 9(1) or (3) it shall be a defence to prove that — a the act constituting the offence was committed in relation to a material or article made with regenerated cellulose film which was manufactured or imported into the European Community before 29th January 2006; and b the act constituting the offence w

What would breach regulation 4?

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 any of the following provisions of Regulation 1935/2004.
  2. Doing the thing the provision prohibits under the Materials and Articles in Contact with Food (England) Regulations 2005, 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
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.

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
29 April 2005
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 Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations revoke the Materials and Articles in Contact with Food Regulations 1987 (S.I. 1987/1523, as amended) (“the 1987 Regulations”) in so far as they apply in relation to England, and re-enact or re–enact with amendments certain provisions contained in those Regulations. These Regulations also provide for the enforcement of Regulation (EC) No. 1935/2004 of the European Parliament and of the Council on materials and articles intended to come into contact with food and repealing Directives 80/590/EEC and 89/109/EEC (“Regulation 1935/2004”). These Regulations do not apply to materials or articles outside the scope of Regulation 1935/2004 (regulation 3). The materials identified in that Regulation as being outside its scope are materials and articles supplied as antiques, covering or coating materials forming part of the food and which may be consumed with it, and fixed public or private water supply equipment. Part 2 of these Regulations contains provision for the enforcement of Regulation 1935/2004, (regulation 4). Regulation 1935/2004 is a framework Regulation on materials and articles in contact with food, and replaces Directives 80/590/EEC and 89/109/EEC, which were implemented by the 1987 Regulations. This Part also provides for designation of the competent authorities for the various purposes identified in Regulation 1935/2004 (regulation 5). Part 3 contains regulations which re-enact, without substantive amendments, the provisions of the 1987 Regulations relating to vinyl chloride (regulations 6 & 7). Part 4 contains regulations that re-enact provisions of the 1987 Regulations relating to regenerated cellulose film (“RCF”), amended as necessary to implement the requirements of Commission Directive 2004/14/EC amending Directive 93/10/EC (regulations 8 & 9). In particular regulation 8 of these Regulations — controls what substances may be used in the manufacture of RCF, which may vary according to whether or not it is coated with plastics (paragraph (3)); regulates what substances may be used to manufacture plastic coatings for RCF, and under what conditions (paragraph (4)); creates a conditional derogation from paragraph (3) in respect of substances used as colourants or adhesives in the manufacture of non-plastic coated RCF (paragraph (5)); creates offences in relation to the sale, import or business use of non-compliant RCF (paragraphs (6) & (7)); and creates a conditional requirement for RCF, when marketed prior to the retail stage, to be accompanied by a declaration of legislative compliance (paragraph (8)). Regulation 9 applies to plastic coated RCF the existing controls (derived from Commission Directive 2002/72 and implemented by the Plastic Materials and Articles in Contact with Food Regulations 1998, S.I. 1998/1376 as amended) on migration of constituents of plastic materials and articles into food, in particular by — specifying overall migration limits for plastic coated RCF (paragraphs (1) & (2)); applying to plastic coated RCF the specific migration limits applicable to certain substances used in the manufacture of plastic materials and articles (paragraphs (3) & (4)); and applying the prescribed methods and procedures for checking compliance with migration limits (paragraphs (5) & (6)). Regulation 10 contains savings and transitional provisions which — preserve the defences available under the 1987 Regulations for any RCF manufactured before 29th April 1994 that may still be in circulation; create a defence in relation to RCF manufactured in or imported into the European Community before 29th January 2006; provide for a defence in relation to exports. Part 5 of these Regulations contains general administrative and enforcement provisions which — penalise contravention of these Regulations or of Regulation 1935/2004 (regulation 11); designate enforcement authorities (regulation 12); provide that the courts may direct that substances should be submitted to the Government Chemist for analysis (regulation 13); apply certain provisions of the Food Safety Act 1990 (regulation 14); make consequential amendments to the Plastic Materials and Articles in Contact with Food Regulations 1998 (S.I. 1998/1376, as amended) (regulation 15); revoke the 1987 Regulations and subsequent amending legislation (regulation 16). A regulatory impact assessment has been prepared for these Regulations and has been placed in the library of each House of Parliament, together with a transposition note setting out how the main elements of Commission Directive 2004/14/EC have been transposed into domestic law by these Regulations. Copies may be obtained from the Chemical Safety Division of the Food Standards Agency, Aviation House, 125 Kingsway, London WC2B 6NH.

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