UK Offence Report

Power to summons witnesses and require production of documents

regulation 10(5) of The Human Fertilisation and Embryology (Procedure for Revocation, Variation or Refusal of Licences) 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

5 Each summons under paragraph (1) and (2) above must—

a contain

a statement to the effect that the person to whom it is addressed may apply to the committee to vary or set aside the summons; and

b refer to the fact that by virtue of section 41(7) of the Act

a person who without reasonable excuse fails to comply with the requirement of that paragraph is guilty of an offence and is liable on summary conviction to imprisonment for

a term not exceeding six months or

a fine not exceeding level five on the standard scale or both.

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 This is the text as originally made; later amendments are not shown here.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
An element of the offence, for the prosecution to prove

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.

“Without reasonable excuse” here is an element of the offence rather than a defence, so its absence is for the prosecution to prove (R v Charles [2009] EWCA Crim 1570).

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision; qualified by reasonable excuse (an element; prosecution disproves once raised).

The defence, as drafted

act that by virtue of section 41(7) of the Act a person who without reasonable excuse fails to comply with the requirement of that paragraph is guilty of an offence and is liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding level five on the standard scale or both.

What would breach regulation 10(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 without reasonable excuse fails to comply with the requirement of that paragraph.
  2. Being served with a notice under the Human Fertilisation and Embryology (Procedure for Revocation, Variation or Refusal of Licences) Regulations 2009 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
Summary only — tried in a magistrates’ court
Maximum fine
Not determined
Maximum prison (summary)
6 months

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
29 May 2009
In force from
1 October 2009
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 are made under Sections 19(6) and 45(3) and (3A) of the Human Fertilisation and Embryology Act 1990 (as amended by the Human Fertilisation and Embryology Act 2008). The Regulations set out set out the procedure to be followed when a person wishes to make representations against certain decisions made by the Human Fertilisation and Embryology Authority. Part 1 deals with preliminary matters, including commencement and interpretation (regulations 1 and 2). Part 2 sets out the procedure for consideration of representations. Regulation 3 provides that representations are to be considered by a Licence Committee of the Human Fertilisation Authority. This regulations sets out details of the quorum and voting procedure to be followed by the Committee, and provides for the Committee to be assisted by advisers and a secretary. This regulation further specifies the roles of the advisers and of the secretary. Regulation 4 specifies the information and documents to be provided to the Authority at the same time that the person wishing to make representations serves the notice of exercise of right that is required by the Act. Regulation 5 sets out the actions that need to be taken by the respective parties after service of the notice of exercise of right, and the required time limits for such actions. Regulation 6 sets out the information that must be contained in a notice of hearing (including information relating to the right to be represented and the procedure to be followed at a hearing) that is to be served on the person wishing to make representations, where that person has requested that a hearing be held. Regulation 7 makes provision for case management meetings to be held, in order to ensure that hearings proceed smoothly and that effective use of time is made at the hearing. Regulation 8 provides for multiple representations to be considered by the same committee, where the committee are satisfied that it is fair and appropriate to do so. Regulation 9 sets out detailed requirements relating to the evidence that the committee can consider. Regulation 10 provides for a power to summons witnesses (other than the person making representations) and to require production of documents. Regulation 11 sets out the burden and standard of proof to be considered by the committee. Regulation 12 and 13 set out the respective procedures to be followed by the committee when it is considering representations on the papers, and when it is considering representations at a hearing. Regulation 14 makes provision for representation and the entitlement of the person making representations to be heard before the committee and regulation 15 makes provision for witness evidence. Regulations 16-19 deal with administrative matters such as adjournments, format of decision notices, transcripts of hearings, and a requirement for the committee to provide an annual report of its activities to the Human Fertilisation and Embryology Authority.

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”; the provision states liability on summary conviction
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