UK Offence Report

Offences in connection with application for licences, conditions attaching to licences, etc

article 9(3) of The Sudan and South Sudan (Restrictive Measures) (Overseas Territories) Order 2012 (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

3 No person shall be guilty of an offence under paragraph (2) where he or she proves that the condition with which he or she failed to comply was modified, otherwise than with their consent, by the Governor after the doing of the act authorised by the licence.

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 This is the text as originally made; later amendments are not shown here.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
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 9(3)?

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 Sudan and South Sudan (Restrictive Measures) (Overseas Territories) Order 2012.

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
15 February 2012
In force from
14 March 2012
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.

The Order gives effect in the specified overseas territories to measures adopted by the European Union in Council Decision 2011/423/CFSP adopted on 18 July 2011 and implemented in Council Regulation 131/2004 as amended, including by amendments introduced following adoption of Council Regulation 1215/2011 on 24 November 2011. Council Decision 2011/423/CFSP repealed Common Position 2005/411/CFSP and extended some restrictive measures to South Sudan which became a separate and independent State on 9 July 2011. Article 1 provides that the Order extends to the territories listed in Schedule 1, and revokes the Sudan (Restrictive Measures) (Overseas Territories) Order 2004. Article 2 contains the interpretations used in the Order. Article 3 makes it a criminal offence for any person to supply restricted goods without a licence. Article 4 prohibits the exportation of restricted goods and makes it a criminal offence to contravene this prohibition. Article 5 prohibits the provision of technical assistance, brokering services, and financing or financial assistance relating to such matters as military activities, and makes it an offence to contravene this provision. Article 6 prohibits the use of ships, aircraft and vehicles to carry restricted goods to Sudan or South Sudan and makes it a criminal offence to contravene this provision. Article 7 provides a licensing procedure to disapply prohibitions in relation to the arms embargo in respect of certain equipment intended solely for humanitarian or protective use, or for institution building programmes, and for related assistance. Article 8 provides for customs powers to demand evidence of the destination of goods and makes it an offence to fail to comply with the provisions. Article 9 creates offences in connection with applications for licences and the failure to comply with the requirements. Article 10 requires that when requested to do so those leaving the Territory provide a declaration as to goods, provides for powers of search and makes it an offence if provisions are not complied with or false information is provided. Article 11 provides powers for searching ships suspected of being used in contravention of the provisions of the Order, for prohibiting a voyage from proceeding and for seizing restricted goods and detaining the vessel. Article 12 provides powers for searching aircraft suspected of being used in contravention of the provisions of the Order, for prohibiting a flight from proceeding and for seizing restricted goods and detaining the aircraft. Article 13 provides powers for searching vehicles suspected of being used in contravention of the provisions of the Order, for prohibiting a journey from proceeding and for seizing restricted goods and detaining the vehicle. Article 14 regulates the furnishing of information under articles 11 to 13 and establishes offences for non compliance. Article 15 provides for the Governor to obtain evidence or information to secure compliance with, or detect evasion of, the matters regulated by the Order. Article 16 provides for penalties for offences created under the Order. Article 17 provides for proceedings for offences created under the Order. Article 18 prescribes the manner in which notices may be given under the Order. Article 19 provides for the delegation of powers by the Governor. Article 20 limits the scope of the prohibitions in the Order. Schedule 1 lists the territories to which the Order applies. Schedule 2 modifies articles 16 and 17 regarding penalties and court procedures for the Sovereign Base Areas. Schedule 3 modifies article 16 regarding penalties for the Falkland Islands and South Georgia and the South Sandwich Islands. Schedule 4 modifies article 16 regarding penalties for the St Helena, Ascension and Tristan da Cunha. Schedule 5 makes provision regarding the collection of information and evidence by the Governor pursuant to article 15.

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