UK Offence Report

27 A person is guilty of an offence if they contravene, or fail to comply with regulation 5, 6, 7(1), (2) or…

regulation 27 of The Scotch Whisky 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

27 A person is guilty of an offence if they contravene, or fail to comply with regulation 5, 6, 7(1), (2) or (3), 8(6) or (7), 9(6), 10(4), 11, 12, 20(3), (4), (9) or (10), 22(2) or 26.

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 This is the text as originally made; later amendments are not shown here.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

ceedings for an offence under these Regulations in Scotland it is a defence for the accused to prove that they took all reasonable steps and exercised all due diligence to avoid committing the offence. 2 In proceedings for an offence under these Regulations in the remainder of the United Kingdom it is a defence for the defendant to prove that they took all r

What would breach regulation 27?

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 contravene, or fail to comply with regulation 5, 6, 7(1), (2) or (3), 8(6) or (7), 9(6), 10(4), 11, 12, 20(3), (4), (9) or (10), 22(2) or 26.
  2. Doing the thing the provision prohibits under the Scotch Whisky 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
Not determined
Maximum fine
Not determined
Maximum prison (summary)
Not determined

no penalty is stated in this instrument; it may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence.

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
26 October 2009
In force from
23 November 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 impose additional national requirements in relation to Scotch Whisky in addition to the requirements that apply to Scotch Whisky by virtue of Regulation (EC) No 110/2008 (OJ No L 39, 13.2.2008, p 16) of the European Parliament and of the Council on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks and repealing Council Regulation (EEC) No 1576/89. The additional national requirements regulate the manufacture (regulation 5), marketing (regulation 6), movement (regulation 7) and presentation (regulations 8 to 12 and Schedules 1 to 3) of Scotch Whisky (which is defined in regulation 3). Scotch Whisky is a geographical indication protected under Regulation (EC) No 110/2008. That Regulation regulates all spirit drinks, including whisky, and provides for the protection of geographical indications for spirit drinks, including Scotch Whisky. The Spirit Drinks Regulations 2008 (S.I. 2008/3206) provide for the enforcement of Regulation (EC) No 110/2008 in the United Kingdom. In doing so, the Spirit Drinks Regulations 2008 apply to drinks in the United Kingdom wherever they have been produced. These Regulations supplement the provisions of Regulation (EC) No 110/2008 as underpinned by the Spirit Drinks Regulations 2008 by laying down stricter rules for the protection of Scotch Whisky (as permitted by Article 6 of Regulation (EC) No 110/2008). They apply to drinks and whisky distillates manufactured in the United Kingdom (regulation 1). These Regulations repeal the Scotch Whisky Act 1988 (1988 c. 22) and revoke the Scotch Whisky (Northern Ireland) Order 1988 (S.I. 1988/1852 (N.I. 19)) (regulation 2). They contain transitional provisions (regulations 13 and 14). They designate the Commissioners for Her Majesty’s Revenue and Customs as a competent authority in relation to the verification functions imposed on them by regulation 5 of the Spirit Drinks Regulations 2008 (regulation 15). They provide for food authorities and port health authorities to enforce the Regulations (regulation 16). They provide for the appointment of officers (regulation 17) and impose a duty on enforcement authorities to give assistance and information to each other (regulation 18). They confer powers of entry (regulation 19) and other powers (regulation 20), including seizure and destruction powers. They require certain procedures to be followed in the event of any exercise of the seizure powers (regulation 21). They provide for the issue of improvement notices (regulation 22) and provide for appeals against improvement notices (regulations 23 and 24). They provide for the destruction of seized products and the giving of improvement notices to be publicised (regulation 25). They prohibit obstruction (regulation 26) create offences for the contravention or failure to comply with specified provisions of the Regulations (regulation 27) and provide for the punishment of criminal offences (regulation 28). They contain provisions relating to offences committed by a body corporate (regulation 29), the commission of an offence due to the act or default of a third person (regulation 30) and defences (regulation 31). These Regulations also create a scheme for the issuing and payment of penalty notices for an offence under regulation 27 in relation to contravention of, or failure to comply with, specified provisions of these Regulations (regulations 32 to 39). They enable the Court of Session in Scotland to grant an interdict, and the High Court in England, Northern Ireland and Wales to grant an injunction, prohibiting contraventions of certain provisions of these Regulations (regulation 40). They contain provisions relating to the giving of notices (regulation 41). A full impact assessment of the effect that these Regulations will have on the costs of business and the voluntary sector is available at www.defra.gov.uk or from Department for Environment, Food and Rural Affairs, Nobel House, 17 Smith Square, London, SW1P 3JR. It is also annexed to the Explanatory Memorandum for these Regulations, which is available, alongside these Regulations, on the OPSI website (www.opsi.gov.uk).

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.

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