UK Offence Report

Power to direct that an aircraft must not fly

regulation 32 of The Operation of Air Services ... 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

32 It is an offence for

a person, without reasonable excuse, to fail to comply with

a direction given under regulation 31.

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 This is the text as originally made; later amendments are not shown here.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
failing to comply with a notice or direction
Fault element
Strict liability
Burden of proof
An element of the offence, for the prosecution to prove

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.

“Without reasonable excuse” here is an element of the offence rather than a defence, so its absence is for the prosecution to prove (R v Charles [2009] EWCA Crim 1570).

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision; qualified by reasonable excuse (an element; prosecution disproves once raised); 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

32 It is an offence for a person, without reasonable excuse, to fail to comply with a direction given under regulation 31.

What would breach regulation 32?

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. Being served with a notice under the Operation of Air Services ... Regulations 2009 and doing nothing by the date it specifies.
  2. Doing part of what the notice requires, where it required all of it.
  3. Disagreeing with the notice and ignoring it, rather than using whatever appeal the instrument provides.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
£5,000
Maximum prison (summary)
Not determined
Maximum prison (on indictment)
2 years

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.

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
15 January 2009
In force from
26 January 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 make provision for implementing Chapters I to III of Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24th September 2008 on common rules for the operation of air services in the Community (OJ L 293, 31.10.08, p. 3). Regulations 5, 14, 15 and 16, and 23 specify the competent authority in relation to operating licences, aircraft leasing and access to intra-Community air services respectively. In relation to operating licences provision is made for— the provision by an applicant for an operating licence of proof that he is of good repute: regulation 6; the power of the CAA to revoke or suspend an operating licence, the date on which a decision to revoke or suspend a licence has effect and the right of appeal: regulations 7 to 9; the restriction on an air carrier’s ability to carry passengers in certain circumstances: regulation 10; and enforcement measures where the CAA believes that an aircraft may be flown by a person without an operating licence or in breach of the restriction in regulation 10: regulation 31. In relation to leased aircraft provision is made for- publication by the CAA of the Secretary of State’s decision on whether an air carrier licensed by the CAA may operate aircraft registered in the UK or in another member State: regulation 14; and the approvals necessary for the operation of leased aircraft and use of an aircraft that is not registered in accordance with the Secretary of State’s decision: regulations 17 and 18. Regulations 11 to 13 and 19 to 21 respectively provide for offences relating to operating licences and aircraft leases. In relation to access to intra-Community air services provision is made for— the enforcement action that may be taken in respect of a decision by the Secretary of State relating to a public service obligation: regulation 23; restrictions on the right of an air carrier to operate on certain routes: regulation 24; and offences relating to the operation of air services without regard to the existence of public service obligations, traffic distribution rules and restrictions on traffic rights: regulation 25. Regulations 26 and 27 set out requirements relating to the provision of information to the Secretary of State by an air carrier licensed by the CAA. Regulations 28 to 30 set out the penalties that apply in relation to the offences in regulations 11 to 13 and 19 to 21, and regulations 31 and 32 make provision for the detention of aircraft in certain circumstances. In regulations 33 to 37 the Civil Aviation Act 1982, the Civil Aviation Authority Regulations 1991 and the Air Navigation Order 2005 are amended so as to refer to the EC Regulation. Schedule 1 lists the regulations revoked by these regulations and Schedule 2 sets out the appeal process in relation to decisions made by the CAA.

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 0.90.

Basis
the provision says “it is an offence”; the provision says an offence is committed “if” something happens
Confidence
0.90 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