UK Offence Report

Unauthorised presence in a controlled building

regulation 34(1) of The Port Security 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

1 Subject to paragraph (2),

a person who contravenes regulation 24(1) or (2) without lawful authority or reasonable excuse is guilty of an offence and liable on summary conviction to

a fine not exceeding level

5 on the standard scale.

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 This is the text as originally made; later amendments are not shown here.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

gulations it is a defence for that person to show that they took all reasonable steps and exercised all due diligence to avoid committing the offence. 2 Where in any proceedings against any person for such an offence the defence provided in paragraph (1) involves an allegation that the commission of the offence was due to— a the act or default of another, or b reliance on in

What would breach regulation 34(1)?

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 contravenes regulation 24(1) or (2) without lawful authority or reasonable excuse.
  2. Doing the thing the provision prohibits under the Port Security Regulations 2009, whatever the reason for doing it.
  3. Where the requirement is a positive duty, letting the time for performing it pass without performing it.

Penalty

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

this is the level 5 value when the instrument came into force (2009-09-01); 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

The Ministry of Justice records offences under this instrument against offence code 9574 — 09574 - TEW offences under the Port Security Regulations 2009. That code may cover several provisions of the instrument, so a count against it is not a count of prosecutions under this provision alone.

No published per-offence figure was found for this provision. Offences created by statutory instrument very largely do not have their own code in the MoJ’s Outcomes by Offence data tool. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
21 July 2009
In force from
1 September 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, in relation to the whole of the United Kingdom, Directive 2005/65/EC of the European Parliament and of the Council of 26 October 2005 on enhancing port security (OJ L 310, 25.11.2005, p 28). The purpose of that Directive is to introduce Community measures to enhance port security and to ensure that security measures taken under Regulation (EC) 725/2004 of the European Parliament and Council of 31 March 2004 on enhancing ship and port facility security (OJ L129, 29.4.2004, p 6), benefit from enhanced port security. In Part 1, regulation 1 provides for the commencement of the Regulations. Regulation 2 deals with interpretation and regulation 3 sets out the application of the Regulations. Regulation 4 and Schedule 1 provide for the notification of port related areas, the appointment of security managers and their duties, including the development and implementation of port related area security plans. Part 2 and Schedule 2 make provision for port security authorities, including their designation and membership, an appeal procedure to address objections to their decisions, their fees and for the provision of information. Part 3 makes provision for the appointment and functions of port security officers. Part 4 sets out the main requirements of the Regulations. Regulation 14 requires a port security assessment to be carried out and for approval for the port security assessment to be obtained from the Secretary of State. Regulations 15, 16, 17 and 22 set out requirements for the preparation, maintenance, approval, implementation and monitoring of the port security plan. Regulation 18 requires reviews of port security assessments and port security plans. Regulation 19 and Schedule 5 contain security training requirements. Regulation 20 requires port security authorities to ensure that appropriate security levels are in place. Regulation 21 contains provisions for security clearance and protective marking of documents and regulation 23 and Schedule 6 allow for the appointment of recognised security organisations. In Part 5 Regulation 24 contains provisions in respect of controlled buildings and regulation 25 provides for the search of people entering, or in, a restricted area or a controlled building. Part 6, sets out the enforcement provisions. Regulation 38 specifies that the Secretary of State is the focal point for port security. An impact assessment in respect of this instrument has been prepared. A Transposition Note which sets out how Directive 2005/65/EC is to be transposed into UK law has also been prepared. Both documents are available from the Department for Transport (Maritime Security Policy Branch), Zone 5/5th Floor, Southside,105 Victoria Street, London SW1E 6DT and are annexed to the Explanatory Memorandum which is available alongside the instrument on the OPSI website (www.opsi.gov.uk). Copies of each document have been placed in the library of each House of Parliament. Copies of the ISPS Code and the International Safety Management (ISM) Code may be obtained from the International Maritime Organisation Publishing Service, 4 Albert Embankment, London SE1 7SR (www.imo.org).

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”
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