UK Offence Report

Offences related to EU authorisations

article 3(2) of The Export Control (Libya) Order 2011 (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

2 A person who, having acted under the authority of an EU authorisation, fails to comply with any of the requirements or conditions to which the EU authorisation is subject commits an offence, unless—

a the EU authorisation was modified after the completion of the act authorised; and

b the alleged failure to comply would not have been

a failure had the EU authorisation not been so modified.

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 This is the text as originally made; later amendments are not shown here.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

What would breach article 3(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. Being served with a notice under the Export Control (Libya) Order 2011 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
Not determined
Maximum fine
Not determined
Maximum prison (summary)
Not determined

no penalty is stated in this instrument; it may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence.

No penalty was determined from this instrument. It may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence. Absence of a figure here is not evidence that the offence carries no penalty.

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 makes provision relating to the enforcement of the elements falling within the remit of the Department for Business, Innovation and Skills (“BIS”) of Council Regulation (EU) No 204/2011 of 2 March 2011 concerning restrictive measures in view of the situation in Libya (“the Libya Regulation”). The Libya Regulation implements, so far as is possible within the framework of the Treaty on the Functioning of the European Union, the sanctions imposed by Council Decision 2011/137/CFSP of 28 February 2011 concerning restrictive measures in view of the situation in Libya (OJ L 58, 3.3.2011, p. 53). The measures include prohibitions on trade, technical assistance, financing, financial assistance or brokering in equipment which may be used for internal repression and restrictions on the provision of technical assistance, financing or financial assistance related to the goods and technology listed in the Common Military List of the European Union. Article 2 creates offences for contravention of the provisions of the Libya Regulation referred to there. There are already offences relating to prohibited importation and exportation of goods in sections 50, 68 and 170 of the Customs and Excise Management Act 1979 (“the 1979 Act”) (1979 c. 2). Article 3 supplements the provisions of the Libya Regulation that allow a competent authority to authorise activities that are otherwise prohibited. Article 3(1) makes it an offence knowingly and recklessly to provide false information for the purpose of obtaining an authorisation. Authorisations may be subject to requirements or conditions which continue even after the activity authorised has been carried out. Article 3(2) makes it an offence to fail to comply with such continuing requirements or conditions unless they were imposed after the activity was carried out or amended after that time in such a way as to give rise to non-compliance. Article 4 addresses a limited overlap with the Export Control Order 2008 (“the 2008 Order”). It provides that if someone acts in a way that would breach both the Regulation - leading to an offence under this Order – and the 2008 Order, they only commit an offence under this Order. Article 5 contains supplementary provisions about offences. Article 5(1) and (2) provide that circumvention of the prohibitions specified in Articles 2 and 3 of the Regulation is an offence. Article 6 sets out the penalties relating to the offences in the Order, and makes some consequential modifications to the 1979 Act to ensure that the offences covered by that Act are subject to the same penalties as those in the Order. Her Majesty’s Revenue and Customs will enforce the provisions of the Order. Article 7 ensures that the same ancillary provisions as apply to their enforcement of customs and excise legislation apply in this context. In the United Kingdom, under the 2008 Order, a licence was already required to export military goods to Libya and for a range of trading activities involving military goods to Libya. Article 8 increases the level of control by making Libya an “embargoed destination” for the purposes of the trade controls in the 2008 Order so that stricter controls apply, including restrictions on the activities of United Kingdom persons overseas (see article 20 of the 2008 Order). It also has the effect that a number of exceptions in the 2008 Order can no longer be used in relation to exports of military goods to Libya: the exceptions for aircraft and vessels (articles 13 and 14), the exception for holders of a firearm or shot gun certificate or permit (article 16), and the transit or transhipment exception (article 17). A regulatory impact assessment has not been prepared for this instrument as it has no or minimal impact on business, charities or voluntary bodies. Further information is available from the Export Control Organisation, BIS, 1 Victoria Street, London SW1H 0ET and on BIS website (www.bis.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 0.92.

Basis
the provision says a person “commits 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