UK Offence Report

Power to require witnesses and documents

regulation 22(6)(b) of The Human Fertilisation and Embryology (Appeals) 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

b must refer to the fact that under section 41(7) (offences) of the Act

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

a term of imprisonment 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 This is the text as originally made; later amendments are not shown here.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

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

What would breach regulation 22(6)(b)?

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 section.
  2. Being served with a notice under the Human Fertilisation and Embryology (Appeals) 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)
Not determined

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
15 July 2009
In force from
16 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 Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations are made under sections 20A and 20B of the Human Fertilisation and Embryology Act 1990 (as amended by the Human Fertilisation and Embryology Act 2008) and make provision for an appeals committee (“the Committee”) to reconsider licensing decisions made by the Authority. Part 1 deals with preliminary matters, including commencement and interpretation (regulations 1 to 3). Part 2 sets out the constitution of the Committee. Regulation 4 provides that the Committee must consist of seven members, although additional members can be appointed for particular cases. Certain people are excluded from being appointed as members, including former or current employees of the Authority. Regulations 5 and 6 make provision about the term of office of members and the procedure for suspension and removal, where necessary. Regulation 7 provides for simple majority voting and a quorum of three. Regulation 8 makes provision preventing the validity of proceedings being questioned by reason of defective appointments. Regulation 9 requires the Committee to prepare an annual report on its activities for the Authority. Part 3 makes provision relating to advisers to the Committee. Regulation 10 enables the Authority to appoint advisers and regulation 11 sets out the functions of those advisers, including advising the Committee at both public hearings and private deliberations. Regulations 12 to 14 set out requirements relating to the manner in which advice is to be tendered and recorded, and relating to the announcement and recording of decisions not to accept advice from advisers. Advisers are also given the power, with the permission of the chair of the Committee, to question witnesses under regulation 15. Part 4 makes provision in relation to procedure for appeals. Regulation 16 requires the person wishing to appeal to provide information and documents, including the grounds of appeal, at the same time as serving the notice of exercise of right under section 20 of the 1990 Act. Regulation 17 requires the Authority to provide documents that will be relied on in relation to the appeal and provides for exchange of documents between the parties. Unless the appellant has requested that the case be considered on the papers the Committee must send the parties a notice of hearing, in the form set out under regulation 18 within 28 days, beginning with the date of receipt of the notice of exercise of right. Regulations 19 and 20 make provision to enable case management meetings and for the Committee to consider and determine two or more appeal requests together from the same appellant, where appropriate. Regulations 21 and 22 make detailed provision relating to the submission of evidence and the power of the Committee to require witnesses and documents. Regulation 23 makes provision relating to the burden and standard of proof to be applied (the civil standard). Regulation 24 gives the Committee the power to reconsider a decision on the papers unless an appellant has requested a hearing. Regulations 25 to 28 set out the procedure for hearings including the calling of witnesses. Provision is made to ensure that both the appellant and the Authority are represented and to enable postponement and adjournment of the hearing where necessary. Regulation 29 requires the Committee to give written notice of its decision within 7 days to the parties and any other person who ought to be informed in the public interest. Regulation 30 makes provision in relation to the recording of notes and the availability of transcripts. Regulation 31 provides that any power conferred on the Chair of the Committee by the regulations can be exercised by the Deputy Chair. Regulation 32 revokes regulations made under the 1990 Act prior to its amendment by the 2008 Act and makes saving provision for the purposes of the Human Fertilisation and Embryology (Consequential Amendments and Transitional and Saving Provisions) Order (S.I. 2009/1892).

Read the full note and every offence in this instrument

What Parliament said

Mentions of this instrument in Hansard. Parliamentary material is reused under the Open Parliament Licence v3.0.

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