UK Offence Report

Preventing environmental damage

regulation 13(3) of The Environmental Damage (Prevention and Remediation) Regulations 2009 (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

3 Failure to comply with paragraph (1) or

a notice served under paragraph (2) is 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 This is the text as originally made; later amendments are not shown here.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 do something the instrument requires
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.

What would breach regulation 13(3)?

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 there is failure to comply with paragraph (1) or a notice served under paragraph (2).
  2. Not doing what the provision requires under the Environmental Damage (Prevention and Remediation) Regulations 2009, by the time it requires it to be done.
  3. Doing it, but not in the manner or to the standard the instrument specifies.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
£5,000
Maximum prison (summary)
3 months
Maximum prison (on indictment)
2 years

expressed as the statutory maximum (the prescribed sum): the same words mean £5,000 in England and Wales and £10,000 in Scotland.

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 January 2009
In force from
1 March 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 implement Directive 2004/35/EC of the European Parliament and of the Council on environmental liability with regard to the prevention and remedying of environmental damage. They apply to damage to protected species, natural habitats, sites of special scientific interest, water and land (regulation 4). They are enforced by the bodies specified in regulations 10 and 11. They provide that, for certain economic activities, where there is a imminent risk of environmental damage, the operator must take steps to prevent it, and if it has occurred must prevent further damage. Where damage has occurred the enforcing authority must assess the damage and identify remedial measures. It must then serve a remediation notice on the responsible operator specifying what remediation is required (Part 3). They make provision for enforcement (Part 4). Breach of specified provisions of the Regulations is an offence punishable— a on summary conviction, with a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding three months or both; or b on conviction on indictment, with a fine or to imprisonment for a term not exceeding two years or both. An impact assessment has been prepared and placed in the libraries of both Houses of Parliament. It is available, together with a transposition note, on the Defra website at www.defra.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 0.88.

Basis
the provision says the conduct “is an offence”; the provision says an offence is committed “if” something happens
Confidence
0.88 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