UK Offence Report

Offences in respect of the EU Regulation

regulation 5(1) of The Mercury Export and Data (Enforcement) Regulations 2010 (revoked)

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 It is an offence to contravene or fail to comply with any requirement of the following Articles of the EU Regulation—

a Article 1(1) (prohibition on export of mercury from the EU not excepted by Article 1(2) (exports of mercury compounds for research and development, medical or analysis purposes));

b Article 1(3) (prohibition on mixing of mercury with other substances for the sole purpose of export);

c Article 5(3) (obligation on importers, exporters and operators to provide data); or

d Article 6 (obligation on chlor-alkali industry and operators to provide data), in respect of the obligation to provide data by 31st May in any year.

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 This is the text as originally made; later amendments are not shown here.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
Mixed — some elements strict, some not
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove the conduct, and - for those elements the provision qualifies (intentionally, knowingly, recklessly) - the state of mind it names. The remaining elements carry no fault requirement, so they are strict.

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: the offence itself carries no fault word, but a duty it criminalises by cross-reference uses knowingly, intentionally, recklessly; which element that governs was not determined.

What would breach regulation 5(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.

  1. Being served with a notice under the Mercury Export and Data (Enforcement) Regulations 2010 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
Unlimited
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
4 February 2010
In force from
Not determined
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 enforce, in the United Kingdom, Regulation (EC) No 1102/2008 of the European Parliament and of the Council on the banning of exports of metallic mercury and certain mercury compounds and mixtures and the safe storage of metallic mercury (OJ No L 304, 14.11.2008, p 75 (“the EU Regulation”)). Under the EU Regulation there are obligations to send data to a competent authority. Part 2 of these Regulations provides for the competent authority. For the purposes of these Regulations, the competent authority is the Environment Agency (in respect of England and Wales), the Scottish Environment Protection Agency (in respect of Scotland), the Department of Environment (in respect of Northern Ireland) and the Secretary of State (in respect of offshore installations). Part 3 of these Regulations provides for offences including breach of the obligations of the EU Regulation. Bans Export ban of Article 1(1) of the EU Regulation, that from the 15th March 2011, metallic mercury and mixtures of mercury with other substances is banned from being exported. An offence will not be committed if the export is of compounds of mercury for research and development, medical and analysis purposes in accordance with Article 1(2) of the EU Regulation. Mixing ban of Article 1(3) of the EU Regulation, that from 15th March 2011, the mixing of metallic mercury with other substances is banned if for the sole purpose of export of metallic mercury. If an offence is committed under these Regulations in respect of breach of Articles 1(1) or (3), it will not be an offence under regulations 21 to 23 and 24 and 25 of the Transfrontier Shipment of Waste Regulations 2007, S.I. 2007/1711. An offence will not be committed in relation to breach of Article 1(3) under these Regulations if an offence is committed under legislation relating to hazardous or special waste (listed in the definition of “relevant hazardous waste offence” in regulation 5(3)). Data obligations. Data obligation of Article 5(3) of the EU Regulation, that by the 1st July 2012, importers, exporters and operators must provide data on mercury entering the EU and traded as waste within the EU. Data obligation of Article 6 of the EU Regulation, that the chlor-alkali industry and the industry sectors that gain mercury from the cleaning of natural gas or as a by-product from non-ferrous mining and smelting operations must provide data (on the amount of mercury in use or gained and on waste mercury) by 31st May in any year. An offence will not be committed under these Regulations if an offence is committed in relation to breach of Articles 5(3) or 6 under legislation relating to permit or licence conditions (listed in the definition of “relevant permitting or licence offence” in regulation 5(4)). Part 4 of these Regulations provides for enforcement by the competent authorities. The competent authorities have enforcement related powers, including powers of entry, in section 108 of the Environment Act 1995 (England, Scotland and Wales) and in Northern Ireland under article 72 of the Waste and Contaminated Land (Northern Ireland) Order 1997 SI 1997 No 2778 (N.I. 19). A full impact assessment of the effect that this instrument will have on the costs of business and the voluntary sector is available on the Defra website (www.defra.gov.uk) and is annexed to the Explanatory Memorandum which is available alongside the instrument on the OPSI website (www.opsi.gov.uk).

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