UK Offence Report

Freezing funds and economic resources

article 9(2) of The Burma (Restrictive Measures) (Overseas Territories) Order 2009

The provision has been revoked and no saving provision preserving liability for earlier conduct was found.

What the provision says

2 A person who contravenes the prohibition in paragraph (1) shall be guilty of an offence under this Order.

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 This is the text as originally made; later amendments are not shown here.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; other provisions of the same instrument use a mens rea word while this one does not (the Cundy v Le Cocq contrast).

The defence, as drafted

Order. 3 In proceedings for an offence under this article, it is a defence for a person to show that they did not know and had no reasonable cause to suspect that the funds or economic resources were owned, held or controlled by a listed person. 4 In this article, “deal with” means— a in respect of funds— i use, alter, move, allow access to or transfer;

What would breach article 9(2)?

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 the prohibition in paragraph (1).
  2. Doing the thing the provision prohibits under the Burma (Restrictive Measures) (Overseas Territories) Order 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
Maximum prison (summary)
3 months
Maximum prison (on indictment)
2 years

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
Revoked
Revoked by
The Burma (Sanctions) (Overseas Territories) Order 2013 (revoked)
Revoked on
11 July 2013
Made
17 November 2009
In force from
19 November 2009
Extent
Not stated

How this was established: the instrument was revoked by a later instrument found in this corpus.

What the instrument is for

(This note is not part of the Order) — the explanatory note published with the instrument, © Crown copyright.

This Order applies to each of the British overseas territories listed in Schedule 1. It maintains and augments restrictive measures in respect of Burma and the continuing serious violations of human rights in that country and the failure of its military authorities to enter into substantive discussions with the democratic movement concerning a process leading to national reconciliation, respect for human rights and democracy. This Order revokes and replaces the Burma (Restricted Measures) (Overseas Territories Order 2004) (SI 2004/1979) and the Burma (Restricted Measures) (Overseas Territories) (Amendment) Order 2004 (SI 2004/3333), together referred to as “the 2004 Order”. The Order is made under statutory and prerogative powers used to implement autonomous European Union sanctions regimes. The Order gives effect in the overseas territories listed in Schedule 1 to measures adopted by the European Union in Council Common Position 2007/750/CFSP on 19th November 2007 and implemented in Council Regulation (EC) No 194/2008 adopted on 25th February 2008, which came into force on 10 March 2008, the date of its publication. The measures in the 2004 Order included a prohibition on the supply or export of arms and related material and equipment that might be used for internal repression to Burma, and a prohibition on making available funds, financial assets or economic resources to listed persons and entities and the freezing of their funds, financial assets or economic resources. These measures are maintained in this Order, which also introduces additional measures, in particular by extending the range of goods subject to the export ban to include goods and technology for industries in Burma which provide revenue for the military regime, by extending the list of persons and entities subject to the asset freeze, by prohibiting the import of specified goods originating in Burma, and by expanding the scope of the investment ban. The provisions of the Order include the following. Article 1 provides that the draft Order extends to the same territories as the 2004 Order. Article 2 contains new and revised definitions. In particular, the ban on the supply of relevant goods and technology for Burmese enterprises engaged in specified industries is given effect by an expanded definition of “restricted goods”. A definition of “prohibited imports” is added. The list of persons and entities subject to the asset freeze is extended by re-defining “listed person”, and enterprises subject to the investment ban are re-defined as “listed enterprises”. Article 3 provides for publication by the Governor of a list of listed persons, and the making available of lists of restricted goods, listed enterprises and prohibited imports. Articles 4, 5, 6 and 7 repeat the provisions of articles 3, 4, 5, and 6 of the 2004 Order, prohibiting the supply or export of restricted goods, the provision of related assistance, and the use of ships, vehicles or aircraft for carriage of restricted goods to Burma. The transport of prohibited imports from Burma is also prohibited by article 7. Article 8 prohibits the importation, purchase or transfer of prohibited imports which have originated in Burma. Article 9, which requires the assets of listed persons to be frozen, is a reformulation of article 8 of the 2004 Order to accord with current wording in the equivalent Order for the United Kingdom. Article 10, which prohibits making funds available to a listed person, is similar to article 7 of the 2004 Order, but also provides a defence. Article 11 provides an exception by allowing a frozen account to be credited with interest. Article 12 provides offences for circumventing the prohibitions in articles 9 and 10. Article 13 enables the Governor to direct that a person reasonably suspected to be a listed person be treated as if he were, for example when using an alias. This mirrors the provisions in the equivalent UK Order. Article 14 makes provision for licences to authorise exemptions from the asset freeze. Article 15 prohibits the financing of listed enterprises, expanding on the similar prohibition in article 8a of the 2004 Order. The ban on investment is extended to a wider range of listed enterprises. Article 16 prohibits the creation of joint ventures with listed enterprises, their subsidiaries or other persons under their control. Article 17 provides an exception to the offences in article 15 for contracts prior to the first listing of the enterprise. Article 18 provides an exception to the prohibition in article 15(1) for trade contracts. Article 19 repeats article 10 of the 2004 Order, regarding failure by relevant institutions to disclose knowledge or suspicion of listed persons or listed enterprises, or contraventions of the Order. Thereafter, the Order in articles 20 to 30 replicates with minor alterations the general provisions contained in articles 11 to 21 of the 2004 Order. Offences and penalties are added in article 28 to correspond with the additional prohibitions made by the Order. The 2004 Order is revoked by article 31. Schedule 2 is revised to reflect court structures and procedures in the Sovereign Base Areas. Schedule 3 contains a modification of article 28 regarding the application of penalties for the Falkland Islands and South Georgia and the South Sandwich Islands. The list of equipment which might be used for internal repression equipment, contained in Schedule 3 of the 2004 Order, is now under article 3 required to be made available in the Territory. Schedule 4 is revised to reflect provisions regarding evidence and information currently used in such sanctions Orders.

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 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