UK Offence Report

“22(1)”; b in paragraph (2), after “Article 4(1) (WMD purpose end-use control)” insert “or Article 5(1)…

paragraph 8 of SCHEDULE of The Export Control (Amendment) (No. 3) 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

8 In article 35—

a in paragraph (1), for “21(1)” substitute “22(1)”;

b in paragraph (2), after “Article 4(1) (WMD purpose end-use control)” insert “or Article 5(1) (brokering services)”;

c in paragraph (4), for “or 21(1)” substitute “, 5(1) or 22(1)”;

d in paragraph (6), for “Article 9(1) (provision of relevant information for licence applications)” substitute “Article 9(2) (provision of relevant information for export authorisation applications) or 10(2) (provision of relevant information for authorisation applications for brokering services)”;

e for paragraph (7) substitute— A person who fails to comply with Article 20 (record-keeping), 22(8) (records of exportation and transfer of listed items within the customs territory) or 22(10) (requirement in relation to commercial documents for exportation and transfer of listed items within the customs territory) of the dual-use Regulation commits an offence and shall be liable on summary conviction to

a fine not exceeding level

3 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 This is the text as originally made; later amendments are not shown here.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
importing or exporting without authority
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 paragraph 8 of SCHEDULE?

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. Moving the goods across the border under the Export Control (Amendment) (No. 3) Order 2009 without the licence the instrument requires.
  2. Holding a licence for one consignment and using it for another.
  3. Sending goods in transit through the United Kingdom, where the provision catches transit as well as import and export.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
£1,000
Standard scale
Level 3
Maximum prison (summary)
Not determined

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
31 July 2009
In force from
27 August 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.

This Order implements in part Council Regulation (EC) No 428/2009 (“the Regulation”) which repeals Council Regulation (EC) No 1334/2000. It amends the Export Control Order 2008 (“the 2008 Order”) to provide for licensing, enforcement and penalties in relation to brokering services of dual-use items controlled by the Regulation. It also makes further consequential amendments and updates to the control lists appearing in the schedules to the 2008 Order. The Regulation is based on a recast proposal designed in part to implement United Nations Security Council Resolution 1540 (2004) (“UNSCR 1540”). UNSCR 1540 establishes binding obligations on all United Nations member states to take and enforce effective measures against the proliferation of WMD, their means of delivery and related materials. To comply with these obligations, the Regulation introduces controls on brokering services and optional controls on dual-use items in transit. The Regulation re-enacts to a large extent the provisions of Council Regulation (EC) 1334/2000, insofar as exports of dual-use goods are concerned. In particular, it replicates the controls on exports of listed goods and end-use export controls. The Regulation also allows for member states to introduce or maintain additional controls on dual-use items in certain circumstances. Paragraph 1 of the Schedule to the Order amends article 2 of the 2008 Order to reflect relevant changes and introduces a definition of “non-community goods”. Paragraph 2 of the Schedule to the Order makes consequential amendments to national transit controls supplementary to the Regulation. Paragraphs 3 to 7 of the Schedule to the Order introduce provisions relating to licences and record keeping for brokering services of dual-use goods. Paragraph 8 of the Schedule to the Order amends article 35 of the 2008 Order to provide for offences and penalties in relation to brokering services prohibited by the Regulation. By amending Schedule 2 Part 2 to the 2008 Order, paragraph 11 of the Schedule to the Order puts into effect changes to the control of certain items agreed by the United Kingdom as a member of the Wassenaar Arrangement, an international non-proliferation regime. Paragraph 11 of the Schedule to the Order, along with paragraphs 10 to 12, make minor corrections to some entries in the control lists contained in the Schedules to the 2008 Order. A full regulatory impact assessment has not been produced for this instrument as it has no impact on the costs of business.

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 “commits an offence”; the provision states liability on summary conviction; the provision states a penalty in older drafting
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