UK Offence Report

Liability of persons other than the principal offender

regulation 44(2) of The Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations 2012

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 Where a body corporate commits an offence and it is proved that the offence was committed— a with the consent or connivance of a relevant person; or b as a result of the negligence of a relevant person, that person, as well as the body corporate, is guilty of the offence.

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 This is the text as originally made; later amendments are not shown here.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 body corporate
Conduct
breaching the provision
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 body corporate 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.

The defence, as drafted

Regulations, it is a defence for a person to show that they took all reasonable steps and exercised all due diligence to avoid committing the offence. 2 A person is not, without the leave of the court, entitled to rely on the defence if it involves an allegation that the commission of the offence was due— a to the act or default of another; or b to reliance on information su

What would breach regulation 44(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. Doing what the provision prohibits, or failing to do what it requires under the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations 2012.

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
4 December 2012
In force from
2 January 2013
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 implement Directive 2011/65/EU of the European Parliament and of the Council of 8 June 2011 on the restriction of the use of certain hazardous substances in electrical and electronic equipment (recast) (OJ No L174, 01.07.2011, p88). The Directive imposes harmonised restrictions on the use of certain listed hazardous substances in 11 categories of electrical and electronic equipment. It also requires the use of EU declarations of conformity and CE marking, and provides for market surveillance. The Directive seeks to reduce the risks posed by hazardous substances to health and the environment. The Directive repeals and replaces Directive 2002/95/EC of the European Parliament and of the Council of 27 January 2003 on the restriction of the use of certain hazardous substances in electrical and electronic equipment (OJ No L37, 13.02.2003, p19) (as amended) which was implemented in the United Kingdom by the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations 2008 (S.I. 2008/37) (as amended). These Regulations revoke and replace S.I. 2008/37 (regulation 7). Regulation 3 sets out the restrictions on the use of certain hazardous substances in electrical and electronic equipment (‘EEE’). Regulation 5 and Schedule 1 set out the EEE to which these Regulations apply. Regulation 6 sets out a time-limited exclusion from the scope of these Regulations. Part 2 of the Regulations sets out the prohibitions and obligations that apply to economic operators. They are divided into prohibitions and obligations applying to manufacturers and their authorised representatives (regulations 10 to 22), importers (regulations 23 to 28), distributors (regulations 29 to 32), and all economic operators (regulations 33 and 34). The various categories of economic operator are defined in regulation 2. In certain circumstances importers and distributors are required to comply with the duties of manufacturers in place of, or in addition to, the duties that apply to importers and distributors (regulations 28 and 32). Part 3 deals with the enforcement of these Regulations. Regulation 35 appoints the Secretary of State as the market surveillance authority, both for the purposes of these Regulations and for the purposes of Regulation (EC) No 765/2008 of the European Parliament of the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93 (OJ No L218, 13.08.2008 p30). The powers under Regulation No 765/2008 are available to supplement the enforcement provisions in these Regulations. Part 4 of the Regulations requires the Secretary of State to review the operation and effect of these Regulations and publish a report within five years after they come into force and within every five years after that. Following a review it will fall to the Secretary of State to consider whether the Regulations should remain as they are, or be revoked or be amended. A further instrument would be needed to revoke the Regulations or to amend them. Schedule 1 sets out what EEE are inside and outside the scope of these Regulations. Schedule 2 contains the powers that the market surveillance authority can exercise, such as test purchases, powers of entry and warrants. Schedule 3 sets out the actions the market surveillance authority can take, and includes provision for compliance, enforcement and recall notices. A transposition note and a full impact assessment of the effect that this instrument will have on the costs of business and the voluntary sector are available from the BIS website (www.bis.gov.uk). They are also annexed to the Explanatory Memorandum published alongside the instrument on www.legislation.gov.uk.

Read the full note and every offence in this instrument

What Parliament said

Mentions of this instrument in Hansard. Parliamentary material is reused under the Open Parliament Licence v3.0.

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