UK Offence Report

Offences relating to movement of controlled horticultural produce

regulation 15(2) of The Marketing of Fresh Horticultural Produce Regulations 2009

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, other than an authorised officer, is guilty of an offence if they remove or cause or permit to be removed from that controlled horticultural produce or its container

a stop notice label affixed by an authorised officer under regulation 13.

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 This is the text as originally made; later amendments are not shown here.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

18 1 It is a defence for a person charged (“A”) with an offence under these Regulations, except for the offences in regulation 16, to prove that their actions were carried out with lawful authority or that they took all reasonable precautions and exercised all due diligence to avoid committing the offence. 2 Where A wishes to rely on the defence in paragraph (1), A must serve on the prosecutor a

What would breach regulation 15(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. On these words an offence is committed where a person remove or cause or permit to be removed from that controlled horticultural produce or its container a stop notice label affixed by an authorised officer under regulation 13.
  2. Doing what the provision prohibits, or failing to do what it requires under the Marketing of Fresh Horticultural Produce Regulations 2009.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
£5,000
Standard scale
Level 5
Maximum prison (summary)
Not determined

this is the level 5 value when the instrument came into force (2009-07-01); 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
3 June 2009
In force from
1 July 2009
Extent
E+W+S+NI

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 provide a new statutory framework for the enforcement of the European Community marketing rules in the fresh fruit and vegetable sector provided for in Articles 113 and 113a of Council Regulation (EC) No 1234/2007 (OJ No L 299, 16.11.2007, p 1) establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation), and contained in Title II of Commission Regulation (EC) No 1580/2007 (OJ No L 350, 31.12.2007, p 1) laying down implementing rules of Council Regulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit and vegetable sector. In particular, they implement the revisions made to the Community marketing rules introduced by Commission Regulation (EC) No. 1221/2008 (OJ No L 336, 13.12.2008, p 1) amending Regulation (EC) No 1580/2007 laying down implementing rules of Council Regulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit and vegetable sector as regards marketing standards. These Regulations revoke the Grading of Horticultural Produce (Amendment) Regulations 1973 (S.I. 1973/22), the Grading of Horticultural Produce (Forms of Labels) Regulations 1982 (S.I. 1982/387) and the Grading of Horticultural Produce (Amendment) Regulations 1983 (S.I. 1983/1053). They disapply the Agriculture and Horticulture Act 1964 (c. 28) and the Horticultural Produce Act 1986 (c. 20) which modifies the 1964 Act from the Community marketing rules in the fresh fruit and vegetable sector. They also disapply the Agricultural Produce (Grading and Marking) Acts 1928 and 1931 (c. 19 and c. 40 respectively) and the Agricultural Marketing Act 1958 (c. 47). They designate the Secretary of State as coordinating authority for the United Kingdom and as inspection body for England under Article 8(1)(a) and (b) respectively of Commission Regulation (EC) No 1580/2007 and provide for the Secretary of State to disclose and require information and to appoint authorised officers (regulation 3). The Regulations make the failure to comply with Article 113a(3) of Council Regulation (EC) No 1234/2007, and the provisions of Commission Regulation (EC) No 1580/2007 mentioned in the Schedule, an offence. They contain additional offences necessary for the effective enforcement of the Community marketing rules (regulation 4 and the Schedule). They exercise the derogation in Article 3(3) of Commission Regulation (EC) No 1580/2007 (regulation 5). This derogation exempts products presented for retail sale to consumers for their personal use from the specific marketing standards provided they are labelled “product intended for processing”, or with other equivalent wording, and the products are not intended for industrial processing. Regulation 6 provides that the powers under Parts 3 and 4 of the Regulations may not be exercised on premises, or part of any premises, used wholly as a dwelling-house. The Regulations confer powers of entry (regulation 7) and other powers (regulation 8), including seizure powers which require authorised officers to fulfil certain duties in relation to any items seized. They contain powers to affix labels indicating various types of non-conformity with the Community marketing rules (regulations 9, 10 and 11). They confer power on authorised officers to control the movement of horticultural produce and give a right of review to those served with a written notice informing of the exercise of that power (regulation 12). They confer power to affix a stop notice label warning of its exercise (regulation 13). There is provision for giving consent to the movement of controlled horticultural produce when certain conditions are met (regulation 14). Regulations 15, 16, 17 and 19 contain provisions on offences relating to controlled horticultural produce, to the obstruction of an authorised officer, to the commission of an offence due to the fault of another person and to the commission of offences by bodies corporate etc.. Regulation 18 provides for defences of acting with lawful authority or exercising due diligence and taking reasonable precautions. Finally, Regulation 20 provides that the penalty for offences is on summary conviction a fine not exceeding level 5 on the standard scale. A full impact assessment of the effect that these Regulations will have on the costs of business and the voluntary sector is available at www.defra.gov.uk or from the Department for Environment, Food and Rural Affairs, Nobel House, 17 Smith Square, London, SW1P 3JR. It is also annexed to the Explanatory Memorandum for these Regulations, which is available on the OPSI website (www.opsi.gov.uk).

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