UK Offence Report

Circumventing prohibitions etc

article 7 of The Tunisia (Restrictive Measures) (Overseas Territories) Order 2011

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

7 Any person who participates knowingly and intentionally, in activities the object or effect of which is, directly or indirectly, to—

a circumvent

a prohibition in article 4(1) or 5(1); or

b enable or facilitate the commission of an offence under article 4(2) or 5(2), 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 This is the text as originally made; later amendments are not shown here.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
breaching the provision
Fault element
Requires proof of a state of mind
Burden of proof
Legal burden on the defendant

The prosecution must prove both that the conduct happened and that it was done with the state of mind the provision names (intentionally, knowingly).

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: mens rea word in the offence-creating words: knowingly, intentionally.

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, “to deal with” means— a in respect of funds— i to use, alter, move, allow access to or tra

What would breach article 7?

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. Doing what the provision prohibits, or failing to do what it requires under the Tunisia (Restrictive Measures) (Overseas Territories) Order 2011.

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
Status not determined
Made
16 March 2011
In force from
18 March 2011
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 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 places restrictive measures on certain persons, entities and bodies responsible for the misappropriation of Tunisian State funds, and persons associated with them who are thereby depriving the Tunisian people of the benefits of the sustainable development of their economy and society and undermining the development of democracy in the country. The Order gives effect in the overseas territories listed in Schedule 1 to measures adopted by the European Union in Council Decision 2011/72/CFSP 31st January 2011 and implemented in Council Regulation (EU) No. 101/2011 adopted 4th February 2011 which came into force on 5th February 2011, the date of its publication. Article 1 provides that the Order extends to the territories listed in Schedule 1. Article 2 contains definitions used in the Order. Article 3 provides for publication by the Governor of a list of listed persons. Article 4 requires the assets of a listed person to be frozen. Article 5 prohibits making funds available to a listed person and also provides for a defence. Article 6 provides exceptions to the articles 4 and 5. Article 7 creates offences for circumventing the prohibitions in articles 4 and 5. Article 8 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. Article 9 makes provision for licences to authorise exemptions from articles 4 and 5. Article 10 requires institutions to disclose knowledge or suspicion of customers or other persons with whom they have dealings being listed persons, and creates offences for failure to comply with the requirements. Article 11 creates offences in connection with applications for licences and the failure to comply with the conditions attaching to a licence. Article 12 provides for the Governor to obtain evidence or information to secure compliance with, or detect evasion of, the matters regulated by the Order. Article 13 provides for penalties and proceeding for offences created under the Order. Article 14 prescribes the manner in which notice may be given under the Order. Article 15 provides for the delegation of powers by the Governor and stipulates the form and nature of licences granted under the Order. Article 16 limits the scope of the prohibitions contained in the Order. Schedule 1 lists the territories to which the Order applies. Schedule 2 reflects court structures in the Sovereign Base Areas. Schedule 3 contains a modification of article 13 regarding the application of penalties for the Falkland Islands and South Georgia and the South Sandwich Islands. Schedule 4 provides for the Governor to obtain evidence or information to secure compliance with, or detect evasion of, the matters regulated by the Order. An impact assessment has not been produced for this instrument as no impact on the private or voluntary sectors is foreseen.

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