Enforcement of directions under section 368K or 368L

Q: Is regulation 368N(1) of The Audiovisual Media Services Regulations 2009 a strict liability offence?

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.

regulation 368N(1) of The Audiovisual Media Services Regulations 2009

Status not determined
Strict liability
Either way
Energy, communications, water and utilities

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 A person (“P”) is guilty of an offence if P provides an on-demand programme service—
a while P’s entitlement to do so is suspended by
a direction under section 368K or 368L, or
b in contravention of
a restriction contained in such
a direction.

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 This is the text as originally made; later amendments are not shown here.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: 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 regulation 368N(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.

Doing the thing the provision prohibits under the Audiovisual Media Services Regulations 2009, whatever the reason for doing it.
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
Maximum prison (summary): Not determined

expressed as the statutory maximum (the prescribed sum): the same words mean £5,000 in England and Wales and £10,000 in Scotland.

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.

Environmental offences: definitive guideline Magistrates' courts and the Crown Court in England and Wales · in force from 1 July 2014
Covers unauthorised or harmful deposit, treatment or disposal of waste, illegal discharges to air, land and water, and the equivalent offences committed by organisations. It is the guideline that introduced turnover bands for corporate fines, so the size of the defendant company is a starting point rather than a mitigating detail.
Health and safety offences, corporate manslaughter and food safety and hygiene offences: definitive guideline Magistrates' courts and the Crown Court in England and Wales · in force from 1 February 2016
Covers breaches of duty under the Health and Safety at Work etc. Act 1974 and the regulations made under it, and food safety and food hygiene offences. Sentencing turns on culpability and on the seriousness and likelihood of harm risked, not only on the harm that happened.
Imposition of community and custodial sentences: definitive guideline All courts in England and Wales
When a community order or custody is justified at all, and the presumption against short custodial sentences.
Reduction in sentence for a guilty plea: definitive guideline All courts in England and Wales · in force from 1 June 2017
The sliding scale of credit for pleading guilty, from one third at the first stage of proceedings downwards.
General guideline: overarching principles All courts in England and Wales · in force from 1 October 2019
The guideline a court uses when there is no offence-specific guideline, which is the position for the overwhelming majority of offences created by statutory instrument. It sets out how culpability and harm are assessed from first principles.
Totality: definitive guideline All courts in England and Wales
How to sentence more than one offence at once so that the total is just and proportionate - frequently in point here, because regulatory prosecutions commonly charge several breaches of the same instrument.

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: 9 November 2009
In force from: 19 December 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

These Regulations implement Directive 2007/65 EC of the European Parliament and of the Council amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (“the Directive”). These Regulations insert new provisions into the Communications Act 2003 (“the Act”). Regulation 2 inserts a new Part 4A into the Act in order to regulate on-demand programme services. Section 368A sets out the meaning of an on-demand programme service and section 368B provides for OFCOM to designate a body as an appropriate regulatory authority. OFCOM is also an appropriate regulatory authority under this Part of the Act. Section 368C imposes duties on the appropriate regulatory authority and sections 368D to 368H impose requirements on the provider of an on-demand programme service. Section 368I sets out an enforcement mechanism for the appropriate regulatory authority in relation to the requirements in sections 368D to 368H. Section 368J regulates the amount of a financial penalty which may be imposed under section 368I and sets out how such a penalty is to be calculated and paid. Sections 368K and 368L confer powers on the appropriate regulatory authority to direct that the entitlement of a provider of an on-demand service to provide that service is suspended or restricted in specified circumstances. A criminal offence to enforce directions made under section 368K or 368L is set out in section 368N. Section 368O provides a power for the appropriate regulatory authority to require the provision of information from the provider of an on-demand programme service for specified purposes. Section 368P sets out which provisions of the regulations apply to the BBC and Regulation 3 describes the functions of OFCOM in relation to the BBC and its on-demand programme services. Section 368Q sets out which provisions apply to the Welsh Authority. Section 368R defines some of the terms used in Part 4A including in subsection (6) the interpretation of the meaning of “BBC” and “Welsh Authority”. Regulation 4 inserts amendments into Schedule 12 of the Act to create an obligation on the Welsh Authority to regulate on-demand programme services provided by Sianel Pedwar Cymru, except in respect of advertising which will be regulated by the appropriate regulatory authority. Regulation 6 amends the definition of television licensable content services, making two changes. Firstly, a principal purpose test in inserted into section 232(2)(b) of the Act and secondly section 233 is amended so that the exclusion of services provided over the internet from the definition of a television licensable content service is removed. Regulation 7 inserts a new section 335A into the Act. This creates a new co-operation procedure which applies to specified broadcasters and holders of broadcast licences. Minor amendments are made to the Act by regulations 8 to 11. Regulation 12 amends the Copyright, Designs and Patents Act 1988 so that copyright would not be infringed by the provision of information, making of recordings or the use of material where it provided or used pursuant to specified sections of the Act. Regulation 13 amends the Wireless Telegraphy Act 2006 to enable OFCOM to require a satellite uplinker to cease or suspend uplinking a relevant regulated television service or an on-demand programme service in certain circumstances. The amendments made by Regulation 13 apply where the service is provided by a person who is deemed to be under the jurisdiction of the United Kingdom for the purpose of the Directive only because that person provides such service by means of a satellite uplink apparatus situated within the United Kingdom. A transposition note and an impact assessment of the effect that this instrument will have on the costs to business and the voluntary sector are available from the website of the Department for Culture, Media and Sport (www.culture.gov.uk). They are also annexed to the Explanatory Memorandum which is available alongside the instrument on the OPSI website.

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.

Communications Act 2003 (Disclosure of Information) Order 2010 Lords · 1 February 2010 · Lord Clement-Jones
My Lords, I commend the Minister on the admirable brevity of his introduction. If it were not for the fact that I have had quite enough exercise today, I, too, would have brought in my copies of the Communications Act. As the Minister indicated, this is the tail end of a process of implementation of the Audiovisual Media Services Directive 2007 and the Audiovisual Media Services Regulations 2009, which relate to…
Digital Economy Bill [HL] Lords · 8 February 2010 · Lord Davies of Oldham
My Lords, I am happy to reassure the noble Baroness, Lady Howe, and the right reverend Prelate the Bishop of Manchester on these points, but I cannot accept the amendment because we have a law in place that achieves its effect. Section 368E(2) of the Communications Act was introduced by the Audiovisual Media Services Regulations 2009 and requires that, if an on-demand programme service contains material which might…
Digital Economy Bill [HL] Lords · 1 March 2010 · Baroness Buscombe
Let me begin by once again declaring my interest in this matter as chairman of the Press Complaints Commission and making it clear that I am not here to represent or support the newspaper industry. My interest relates wholly and directly to the crucial issue of self-regulation or, as I would prefer to call it, regulation that is entirely independent of the state. My concern is to ensure that the Bill does not…
Digital Economy Bill Commons · 13 September 2016 · Fiona Bruce (Congleton) (Con)
I welcome the Bill and the Government’s commitment to the universal service obligation and a quality high-speed broadband connection to every home and business. I do so in the hope that it will facilitate an end to the difficulties endured by very many of my constituents, of whom Ministers are aware, as a result of poor internet speeds that are in some cases wholly inadequate, such as the business owners who have a…

Other offences in the same instrument

Enforcement of directions under section 368K or 368L 368N 1 A person (“P”) is guilty of an offence if P…regulation 2

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

This provision on legislation.gov.uk The authoritative text. Check it before relying on anything here.
The Audiovisual Media Services Regulations 2009 Every offence this instrument creates, and its explanatory note
Energy, communications, water and utilitiesOther offences on the same subject
Offences created in 2009