UK Offence Report

Enforcement of Regulation 2023/2006

regulation 5 of The Materials and Articles in Contact with Food (England) Regulations 2007 (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

5 Any person who fails to comply with the requirements of Article 4 (conformity with good manufacturing practice) of Regulation 2023/2006 is 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 This is the text as originally made; later amendments are not shown here.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
failing to comply with a notice or direction
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

4). 3 A person satisfies the requirements of this paragraph if he proves — a that the commission of the offence was due to the act or default of some other person who was not under his control, or to reliance on information supplied by such a person; b that either — i he carried out all such checks of the material or article in qu

What would breach regulation 5?

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 fails to comply with the requirements of Article 4 (conformity with good manufacturing practice) of Regulation 2023/2006.
  2. Being served with a notice under the Materials and Articles in Contact with Food (England) Regulations 2007 and doing nothing by the date it specifies.
  3. Doing part of what the notice requires, where it required all of it.
  4. Disagreeing with the notice and ignoring it, rather than using whatever appeal the instrument provides.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
£5,000
Standard scale
Level 5
Maximum prison (summary)
Not determined
Maximum prison (on indictment)
2 years

this is the level 5 value when the instrument came into force (2007-10-29); 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
19 September 2007
In force from
29 October 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 Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations revoke the Materials and Articles in Contact with Food (England) Regulations S.I. 2005/898) (“the 2005 Regulations”) and re-enact or re–enact with amendments provisions contained in those Regulations. These Regulations 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 (OJ No. L338, 13.11.2004, p.4) (“Regulation 1935/2004”). The Regulations also provide for the enforcement of Commission Regulation (EC) No. 2023/2006 on good manufacturing practice for materials and articles intended to come into contact with food (OJ No. L384, 29.12.2006, p.75 (“Regulation 2023/2006”), and implement Commission Directive 2007/42/EC relating to materials and articles made of regenerated cellulose film intended to come into contact with foodstuffs (OJ No. L172, 30.6.2007, p.71) (“Directive 2007/42”). This Directive repealed and consolidated Commission Directive 93/10/EEC (OJ No. L93, 17.4.1993, p.27) as last amended by Commission Directive 2004/14/EC (OJ No. L27, 30.1.2004, p.48). These Regulations provide that references to a certain EC instrument or specified parts of certain EC instruments are to be construed as references to the instrument or specified part of it as it may be amended from time to time (regulation 2(4)). 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 provisions which make it an offence to contravene certain requirements of Regulation 1935/2004, (regulation 4), and of Regulation 2023/2006 (regulation 5). Regulation 1935/2004 is the principal framework Regulation on materials and articles in contact with food.. This Part also provides for designation of the competent authorities for the various purposes identified in Regulations 1935/2004 and 2023/2006 (regulations 6 and 7). Part 3 contains regulations which re-enact, without substantive amendments, the provisions of the 2005 Regulations relating to vinyl chloride (regulations 8 and 9). Part 4 contains regulations which re-enact provisions of the 2005 Regulations relating to regenerated cellulose film (“RCF”), with minor amendments to implement Directive 2007/42 (regulations 10 &11). In particular regulation 10 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 11 applies to plastic coated RCF the existing controls (derived from Commission Directive 2002/72/EC) 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 12 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; and create a defence in relation to RCF manufactured in or imported into the European Community before 29th January 2006. Part 5 of these Regulations contains general administrative and enforcement provisions which— penalise contravention of these Regulations or obstruction of those enforcing them (regulation 13); designate enforcement authorities for various functions under the Regulations (regulation 14); provide that individuals responsible for the actions of a corporate body or a Scottish partnership may be co-prosecuted for offences committed by that body or partnership (regulation 15); provide for the prosecution of a person who causes the commission of an offence by another person, whether or not proceedings are taken against the original offender (regulation 16); specify a time limit for commencing a prosecution (regulation 17); provide for a defence of due diligence to an offence under these Regulations (regulation 18); specify the procedure to be followed when sending a sample for analysis (regulation 19); make provision for a reference sample to be analysed by the Laboratory of the Government Chemist (regulation 20); and apply certain provisions of the Food Safety Act 1990 (regulation 21). In Part 5 these Regulations also — amend Schedule 3 to the Ceramic Articles in Contact with Food (England) Regulations 2006 (S.I. 2006/1179) (regulation 22); make consequential amendments to the Plastic Materials and Articles in Contact with Food (England) (No.2) Regulations 2006 (S.I. 2006/2687) and the Food Safety (Sampling and Qualifications) Regulations 1990 (S.I. 1990/2463) (regulations 23 & 24); and revoke the Materials and Articles in Contact with Food (England) Regulations 2005 and subsequent amending legislation (regulation 25). A full regulatory impact assessment of the effect that this instrument will have on the costs of business and the voluntary sector is available from the Chemical Safety Division of the FoodStandards Agency, Aviation House, 125 Kingsway, London WC2B 6NH and is annexed to the Explanatory Memorandum which is available alongside the instrument on the OPSI website.

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