UK Offence Report

Use of ships, aircraft and vehicles: restricted goods and prohibited luxury goods

article 7(3) of The North Korea (United Nations Measures) (Overseas Territories) (Amendment) Order 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

3 If any ship, aircraft or vehicle is used in contravention of paragraph (1) then—

a in the case of

a ship registered in the Territory or any aircraft so registered, the owner and the master of the ship or, as the case may be, the operator and the commander of the aircraft; or

b in the case of any other ship or aircraft, the person to whom the ship or aircraft is for the time being chartered and, if he is such

a person as is referred to in paragraph (2)(a) or (b), the master of the ship or, as the case may be, the operator and the commander of the aircraft; or

c in the case of

a vehicle, the operator of the vehicle, shall be guilty of an offence under this Order, unless he proves that he did not know and had no reason to suppose—

i that the carriage of the goods in question was, or formed part of, carriage from any place outside North Korea to any destination therein; or

ii that the carriage of the goods in question was, or formed part of, carriage from North Korea to any destination outside North Korea.

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 This is the text as originally made; later amendments are not shown here.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
an owner
Conduct
contravening a requirement of the instrument
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 an owner 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; other provisions of the same instrument use a mens rea word while this one does not (the Cundy v Le Cocq contrast).

The defence, as drafted

he vehicle, shall be guilty of an offence under this Order, unless he proves that he did not know and had no reason to suppose— i that the carriage of the goods in question was, or formed part of, carriage from any place outside North Korea to any destination therein; or ii that the carriage of the goods in question was, or formed par

What would breach article 7(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. Doing the thing the provision prohibits under the North Korea (United Nations Measures) (Overseas Territories) (Amendment) Order 2009, whatever the reason for doing it.
  2. Where the requirement is a positive duty, letting the time for performing it pass without performing it.

Penalty

Mode of trial
Not determined
Maximum fine
Not determined
Maximum prison (summary)
Not determined

no penalty is stated here: this instrument amends another one, and the penalty for the offence is in the instrument being amended.

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
8 July 2009
In force from
10 July 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 Order) — the explanatory note published with the instrument, © Crown copyright.

The Order made under the United Nations Act 1946 amends the North Korea (United Nations Measures) (Overseas Territories) Order 2006 (S.I. 2006/3327, as amended by S.I. 2007/1347 and S.I. 2009/888) (“the principal Order”). The amendments are to give effect to measures introduced by resolution 1874 (2009) adopted by the United Nations Security Council on the 12th June 2009 and certain aspects of its previous resolution 1718 (2006). The amendments to the principal Order are as follows:— Article 2 adds a revised definition of “restricted goods” and a new definition of “ship supply services” to article 2(1) of the principal Order. Article 3 replaces article 7 of the principal Order with a revised article 7 prohibiting the use of flag vessels or aircraft for the carriage of restricted goods either to or from North Korea, and for the carriage of prohibited luxury goods to North Korea. Article 4 introduces a new article 8A into the principal Order prohibiting the provision of ship supply services to North Korean ships in specified circumstances. Any person knowingly concerned in a breach of this prohibition in such circumstances commits an offence. Article 5 amends the penalties provisions in article 23 of the principal Order to provide penalties for a breach of article 8A. Article 6 makes a corresponding amendment to that in article 5 in the application of article 23 of the principal Order to the Sovereign Base Areas in Cyprus.

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