UK Offence Report

Supply of restricted goods and prohibited luxury goods

article 4 of The North Korea (United Nations Measures) (Overseas Territories) Order 2006

The provision has been revoked and no saving provision preserving liability for earlier conduct was found.

What the provision says

4 1 Any person who, except under the authority of a licence granted by the Governor under this article or article 5 — a supplies or delivers; b agrees to supply or deliver; or c does any act calculated to promote the supply or delivery of, restricted goods or prohibited luxury goods to any person or destination in North Korea shall be guilty of an offence under this Order, unless he proves that he did not know and had no reason to suppose that the goods in question were to be supplied or delivered to a person in North Korea.

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 This is the text as originally made; later amendments are not shown here.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
selling or supplying something the instrument restricts
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; other provisions of the same instrument use a mens rea word while this one does not (the Cundy v Le Cocq contrast).

The defence, as drafted

North Korea shall be guilty of an offence under this Order, unless he proves that he did not know and had no reason to suppose that the goods in question were to be supplied or delivered to a person in North Korea.

What would breach article 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. Selling the goods under the North Korea (United Nations Measures) (Overseas Territories) Order 2006 where the instrument prohibits the sale outright.
  2. Supplying without carrying out a check the instrument requires first, even where the sale would otherwise be lawful.
  3. Offering for sale counts as well as selling: displaying stock is enough where the provision reaches an offer.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
£5,000
Maximum prison (summary)
6 months
Maximum prison (on indictment)
2 years

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 Democratic People’s Republic of Korea (Sanctions) (Overseas Territories) Order 2012
Revoked on
9 January 2013
Made
14 December 2006
In force from
16 December 2006
Extent
Not stated

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 Order) — the explanatory note published with the instrument, © Crown copyright.

This Order, made under section 1 of the United Nations Act 1946, gives effect in the territories listed in Schedule 1 to Resolution 1718(2006) adopted by the Security Council of the United Nations on 14th October 2006. The Security Council has decided that all states are to take certain measures against the Democratic People’s Republic of Korea (North Korea) following its conduct of a test of a nuclear weapon. The measures include a ban on supply to North Korea of certain arms and sensitive goods and technologies related to North Korea’s nuclear weapon, ballistic missile and other weapons of mass destruction programmes (“restricted goods”), a ban on related assistance, a ban on procurement of restricted goods from North Korea, a ban on supply to North Korea of prohibited luxury goods, and an asset freeze on, and prohibition on making funds available to, designated persons and entities. A Committee of the Security Council, established under the Security Council Resolution, or the Security Council, may designate further banned goods and persons or entities subject to the asset freeze. The substantive provisions include the following: Article 3 of this Order requires the Governor of each territory to maintain a list of persons and entities designated by the Committee of the Security Council (“designated persons”) as subject to the asset freeze, and to publish the list in the official gazette of the Territory, as well as a list of restricted goods and prohibited luxury goods as necessary. Article 4 makes it a criminal offence for any person to supply restricted or prohibited luxury goods without a licence. Article 5 prohibits the exportation of restricted or prohibited luxury goods and makes it a criminal offence to contravene this prohibition. Article 6 prohibits the provision of technical or financial assistance relating to restricted goods and makes it a criminal offence to contravene this prohibition. Article 7 prohibits the use of ships, aircraft and vehicles to carry restricted goods or prohibited luxury goods to North Korea, and makes it a criminal offence to contravene this prohibition. Article 8 prohibits the procurement of restricted goods from North Korea, and makes it a criminal offence to contravene this prohibition. Article 9 prohibits any dealing with funds, financial assets and economic resources of designated persons, and makes it a criminal offence to contravene this prohibition. Article 10 prohibits making funds, financial assets and economic resources available to designated persons, and makes it a criminal offence to contravene this prohibition. Article 12 makes it a criminal offence to circumvent the prohibitions in articles 9 and 10 or to facilitate the commission of an offence relating to these prohibitions. Article 13 gives the Governor power to direct that a person or entity suspected of being controlled or directed, or in the case of an entity, owned, controlled or directed, by a designated person, or of acting on behalf of or at the direction of a designated person is to be treated for the purposes of the prohibitions and offences as if he or it were a designated person. It also creates an appeal process in respect of any such direction. Article 14 provides a licensing procedure to enable, for humanitarian purposes, certain dealings or activities to be exempted from the asset freeze prohibitions. Penalties applying upon conviction for offences under the Order are provided in article 24. Schedule 3 makes provision about information and evidence. Schedule 4 contains the list of prohibited luxury goods.

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