UK Offence Report

Prohibition notices

regulation 11(5) of The Construction Products Regulations 2013

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

5 A person who contravenes

a prohibition notice shall be guilty of an offence and liable on summary conviction to imprisonment for

a term not exceeding three months or to

a fine not exceeding level

5 on the standard scale or to both.

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 This is the text as originally made; later amendments are not shown here.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
contravening a requirement of the instrument
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.

What would breach regulation 11(5)?

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. On these words an offence is committed where a person contravenes a prohibition notice.
  2. Doing the thing the provision prohibits under the Construction Products Regulations 2013, whatever the reason for doing it.
  3. Where the requirement is a positive duty, letting the time for performing it pass without performing it.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
£5,000
Standard scale
Level 5
Maximum prison (summary)
3 months

this is the level 5 value when the instrument came into force (2013-07-01); the standard scale is keyed to the date the offence was committed, and for conduct today the same words mean an unlimited fine.

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 June 2013
In force from
1 July 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 make provision necessary for the operation in the United Kingdom of Regulation (EU) No 305/2011 of the European Parliament and of the Council laying down harmonised conditions for the marketing of construction products and repealing Council Directive 89/106/EEC (OJ No L 88, 4.4.2011, p.5) (“the 2011 Regulation”). The Regulations revoke the Construction Products Regulations 1991 (S.I. 1991/6120, amended by S.I. 1994/3051) (“the 1991 Regulations”), which implemented Council Directive 89/106/EEC on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products (OJ No L 40, 11.2.1989, p.12) in the United Kingdom. Part 1 (preliminary) of the Regulations provides for citation, commencement and interpretation, and establishes the competent authority in the United Kingdom for the purposes of the 2011 Regulation, and, insofar as it applies to construction products, to Regulation (EC) No 765/2008 of the European Parliament and of the Council setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93 (OJ L 218, 13.8.2008, p.30) (“the 2008 Regulation”). In Part 2 (requirements relating to construction products), regulations 4 (prohibition on supply etc.) and 5 (breaches of duty by economic operators) establish offence provisions in respect of breaches of the principal safety-related provisions of the 2011 Regulation. Regulation 6 (other breaches of the 2011 Regulation) provides an offence where construction products are supplied without accompanying product identification, contact information for manufacturers, importers or distributors, or instructions and safety information. Regulation 7 (suspension notices) and Schedule 2 make provision, based on provision in the 1991 Regulations, for the service of notices by an enforcement authority suspending the supply of construction products on grounds of the commission of an offence under regulations 4, 5 or 6, or on a number of grounds relating to the 2011 Regulation and to the 2008 Regulation, set out in Schedule 1. Schedule 2 includes provision for appeal against suspension notices. An offence is provided for in respect of breach of a notice. Regulations 8 (forfeiture: England and Wales and Northern Ireland) and 9 (forfeiture: Scotland) make provision for forfeiture of construction products, based on provision in the 1991 Regulations, on grounds similar to those for the service of suspension notices. Regulation 10 (duty of enforcement authority to give notice of suspension notices and forfeiture applications etc.) provides that enforcement authorities must notify the Secretary of State of any action that they take under regulations 7 to 9. Regulations 11 (prohibition notices) and 12 (notices to warn) make provision, based on provision in the 1991 Regulations, for the service of notices by the Secretary of State prohibiting the supply of construction products, and requiring the issue of warnings in relation to construction products, on grounds of the commission of an offence under regulations 4 or 5, or on the grounds set out in Schedule 1. Offences are provided for in respect of breach of notices. Regulation 13 (power to obtain information) provides for the service of notices requiring information to assist the Secretary of State in deciding whether to serve prohibition notices and notices to warn, with an offence for non-compliance or provision of false information. Schedules 3 and 4 contain requirements for the content of prohibition notices and notices to warn. Schedule 3 establishes a procedure by which representations may be made against the grounds for service of a prohibition notice. Schedule 4 provides for notice to be given in advance of service of a notice to warn, and for a procedure for representations to be made against the service of the notice. Part 3 (enforcement of Part 2 and the 2011 Regulation) of the Regulations makes enforcement provision based on similar provision in the 1991 Regulation. Regulation 14 (enforcement) establishes the duty for local weights and measures authorities in England and Wales and in Scotland, and district councils in Northern Ireland, to carry out market surveillance under the 2008 Regulation, as it applies to construction products, and the 2011 Regulation and to enforce the provisions of Part 2 and the 2011 Regulation in their areas. Regulation 14 also empowers local weights and measures authorities in England and Wales to investigate and prosecute in relation to offences anywhere in England and Wales, and district councils to do the same anywhere in Northern Ireland. Regulations 16 (powers of search etc.) and 17 (provisions supplemental to regulation 16) govern powers of entry, search and seizure in connection with failures to comply with the requirements of the 2011 Regulation and offences under Part 2 of the Regulations. Regulation 18 (obstruction of authorised officer) establishes offences for obstructing, or giving false information to, an officer of an enforcement authority. Part 4 (miscellaneous and supplemental) makes provision also largely based on provision in the 1991 Regulations. This includes an offence provision in regulation 22 (restrictions on disclosure of information) for disclosure of information obtained in the course of procedures under the Regulations or under Article 27(2) (sharing of information between market surveillance and external border control authorities) of the 2008 Regulation, and transitional provisions. A full impact assessment has not been produced for this instrument as a full impact assessment of the effect that the proposals that led to the adoption of the 2011 Regulation will have on the costs of business, the voluntary sector and the public sector was carried out in 2009. No, or no significant, impact on the private, voluntary or public sectors is foreseen beyond that already described in that assessment. The 2009 impact assessment is available online athttp://webarchive.nationalarchives.gov.uk/2010010417052/http://www.communities.gov.uk/publications/planningandbuilding/constructionproductsimpactfinal, or a copy may be obtained on application to the Department for Communities and Local Government, Building Regulations and Standards Division, Zone 5/G9, Eland House, Bressenden Place, London SW1E 5DU or to construction.products@communities.gsi.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 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