UK Offence Report

Offences related to Community authorisations

article 9(2) of The Export Control (Burma) Order 2008 (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

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 This is the text as originally made; later amendments are not shown here.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 9(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 (Burma) Order 2008 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
21 April 2008
In force from
23 April 2008
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 creates offences relating to the provisions of Council Regulation (EC) No 194/2008 (“the Regulation”) that fall within the remit of the Department for Business, Enterprise and Regulatory Reform. The Regulation itself implements at European Community level the provisions of Common Position 2007/750/CFSP (amending Common Position 2006/318/CFSP) which strengthens the existing European Union sanctions and embargoes relating to Burma. It replaces Council Regulation (EC) No 817/2006 (“the previous Regulation”). Article 1(3) ensures that if the Commission amends an Annex to the Regulation, using the procedure in Article 18 of the Regulation, the Order works by reference to the amended Annex. However, the lists of goods, equipment and technology in Annexes I, II and III to the Regulation cannot be amended in this manner. Consequently, the main purpose of Article 1(3) is to allow the Order to keep pace with changes to those designated as caught by the financial assistance restrictions in Article 7(3) of the Regulation (i.e. those listed in Annex V). Articles 2 to 8 create offences for contravention of the provisions of the Regulation referred to there. There are already offences in sections 50, 68 and 170 of the Customs and Excise Management Act 1979 that relate to prohibited importation of goods (to the United Kingdom) and prohibited exportation of goods (from the United Kingdom). Article 9 supplements the provisions of the Regulation that allow a competent authority to authorise activities that are otherwise prohibited. Article 9(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 9(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 10 sets out the penalties relating to the offences in the Order. The most serious penalties are reserved for sale, supply, transfer or export of equipment that could be used for internal repression. Exportation from the United Kingdom being dealt with in sections 68 and 170 of the Customs and Excise Management Act 1979, Article 10(6) modifies the maximum penalty under those sections for contravening an export prohibition in the Regulation relating to such equipment. Her Majesty’s Revenue and Customs will enforce the provisions of the Order. Article 11 ensures that the same ancillary provisions as apply to their enforcement of customs and excise legislation apply in this context. Article 12 revokes the secondary legislation that created offences relating to the previous Regulation. A full regulatory impact assessment has not been produced for this instrument as no or minimal 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