UK Offence Report

Offences related to Community authorisations

article 5(2) of The Export Control (North Korea) Order 2007

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

2 A person who, having acted under the authority of

a Community authorisation, fails to comply with any of the requirements or conditions to which the Community authorisation is subject commits an offence, unless—

a the Community authorisation was modified after the completion of the act authorised; and

b the alleged failure to comply would not have been

a failure had the Community authorisation not been so modified.

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 This is the text as originally made; later amendments are not shown here.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
failing to comply with a notice or direction
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; other provisions of the same instrument use a mens rea word while this one does not (the Cundy v Le Cocq contrast).

What would breach article 5(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. Being served with a notice under the Export Control (North Korea) Order 2007 and doing nothing by the date it specifies.
  2. Doing part of what the notice requires, where it required all of it.
  3. Disagreeing with the notice and ignoring it, rather than using whatever appeal the instrument provides.

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
25 April 2007
In force from
27 April 2007
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 Order) — the explanatory note published with the instrument, © Crown copyright.

This Order is part of the United Kingdom implementation of United Nations Security Council Resolution 1718 (2006) (“UNSCR 1718”), which imposes restrictions on trade with the Democratic People’s Republic of Korea. The Council of the European Union has adopted a Common Position (Council Common Position 2006/795/CFSP – “the Common Position”) in response to UNSCR 1718. Council Regulation (EC) No 329/2007 (“the Regulation”) implements the elements of the Common Position that fall within Community competence. The Regulation contains Annexes with lists of goods and other items that it affects. Article 13 of the Regulation enables the Commission to amend these Annexes. Article 1(3) of the Order ensures that the offences in the Order do not just relate to the Annexes in the Regulation as originally adopted. Articles 2 and 3 relate to matters that are outside Community competence. Article 2 amends the Export of Goods, Transfer of Technology and Provision of Technical Assistance (Control) Order 2003 (“the 2003 Order”) to ensure that certain exemptions from export controls no longer apply in relation to exports to North Korea. For example, the exemption relating to exportation of aircraft following temporary importation in article 11(2) of the 2003 Order will no longer apply. Article 3 amends the Trade in Controlled Goods (Embargoed Destinations) Order 2004 (“the 2004 Order”) so that North Korea becomes an embargoed destination. This means that the trade controls in the 2004 Order that prohibit military and certain other equipment from being supplied from outside the UK to certain destinations extend to North Korea. Articles 4 to 7 relate to implementation of the Regulation. Article 4 creates offences for contravention of the provisions of the Regulation referred to there. There are already some offences relating to prohibited importation and exportation of goods in sections 50, 68 and 170 of the Customs and Excise Management Act 1979 and the Order creates new offences only where necessary. Article 5 supplements the provision of the Regulation that allows a competent authority to authorise activities that are otherwise prohibited. Article 5(1) makes it an offence knowingly or recklessly to provide false information for the purpose of obtaining an authorisation. Authorisations may be subject to requirements or conditions that continue even after the activity authorised has been carried out. Article 5(2) makes it an offence to fail to comply with such continuing requirements or conditions unless they were imposed after the activity was carried out or amended after that time in such a way as to give rise to non-compliance. Article 6 sets out the penalties relating to the offences in the Order. Her Majesty’s Revenue and Customs will enforce the provisions of the Order. Article 7 ensures that the same ancillary provisions as apply to their enforcement of customs and excise legislation apply in this context. A full regulatory impact assessment has not been produced for this instrument as no impact on the private or voluntary sectors is foreseen.

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 “commits 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