UK Offence Report

Contravention of The Explosives Regulations 2014

the instrument as a whole of The Explosives Regulations 2014

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

Contravening this instrument is an offence under section 33(1)(c) of the Health and Safety at Work etc. Act 1974. The instrument itself contains no offence-creating words.

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 This is the text as originally made; later amendments are not shown here.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
selling or supplying something the instrument restricts
Fault element
Strict liability
Burden of proof
Not determined

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.

Classifier’s reasoning: contravention offences of this kind are strict as to the breach; the fault position is governed by the parent Act and was not read from it.

What would breach the instrument as a whole?

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. Selling the goods under the Explosives Regulations 2014 where the instrument prohibits the sale outright.
  2. Supplying without carrying out a check the instrument requires first, even where the sale would otherwise be lawful.
  3. Offering for sale counts as well as selling: displaying stock is enough where the provision reaches an offer.

Penalty

Mode of trial
Set by another provision — the instrument states the penalty by reference to an Act or to another regulation
Maximum fine
Not determined
Maximum prison (summary)
Not determined

The instrument does not state a penalty itself. It sets one by reference to section 33(1)(c) of the Health and Safety at Work etc. Act 1974.

the penalty is in the parent Act, not in this instrument.

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

The Ministry of Justice records offences under this instrument against offence code 8512 — 08512 - Triable either way offences under the Explosives Regulations 2014. That code may cover several provisions of the instrument, so a count against it is not a count of prosecutions under this provision alone.

No published per-offence figure was found for this provision. Offences created by statutory instrument very largely do not have their own code in the MoJ’s Outcomes by Offence data tool. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
23 June 2014
In force from
Not determined
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 consolidate the Control of Explosives Regulations 1991 (S.I. 1991/1531) (“the 1991 Regulations”), the Placing on the Market and Supervision of Transfers of Explosives Regulations 1993 (S.I. 1993/2714), the Marking of Plastic Explosives for Detection Regulations 1996 (S.I. 1996/890), the Manufacture and Storage of Explosives Regulations 2005 (S.I. 2005/1082) (“the 2005 Regulations”) and the Identification and Traceability of Explosives Regulations 2013 (S.I. 2013/449), all of which are revoked. The Regulations implement as regards Great Britain, Council Directive 93/15/EEC on the harmonization of the provisions relating to the placing on the market and supervision of explosives for civil uses (OJ No. L121, 15.5.93, p.20) as amended by Regulation (EC) No. 1882/2003 of the European Parliament and the Council (OJ No. L 284, 31.10.2003, p.1), Regulation (EC) No. 219/2009 of the European Parliament and of the Council (OJ No. L 87, 31.3.2009, p.109) and Regulation (EU) No. 1025/2012 of the European Parliament and of the Council (OJ No. L 316, 14.11. 2012, p. 12). Regulations 8 and 39 to 42, 43 and 44 in part, and 45 are for implementing these European provisions. The Regulations implement, as regards Great Britain, Commission Directive 2008/43/EC setting up, pursuant to Council Directive 93/15/EC, a system for the identification and traceability of explosives for civil uses (OJ No. L 94, 5.4.2008, p.8) (“the 2008 Directive”) as amended by Commission Directive 2012/4/EU (OJ No. L 50, 23.2.12, p.18). Regulations 33, 34, 36 and 43 and 44 in part, are for implementing these European provisions. The Regulations implement in part the Convention on the Marking of Plastic Explosives for the Purpose of Detection, done at Montreal on 1st March 1991 (regulation 38). The Technical Annex to the Convention has been amended twice, firstly in 2002 (with effect from 27th March 2002) and secondly in 2005 (with effect from 19th December 2005). These Regulations incorporate those amendments. The provisions in regulation 38 and Schedule 8 that implement the Montreal Convention were notified in draft to the European Commission under the provisions of the Directive 98/34/EC of the European Parliament and of the Council laying down a procedure for the provision of information in the field of technical standards and regulations. Besides making minor and drafting changes, these Regulations make a number of other changes in the consolidation. The main changes are as follows: registration in respect of the storage of small amounts of certain explosives is no longer possible and such storage will now come within the licensing regime for the storage of explosives; the storage of ammonium nitrate blasting intermediate (“ANBI” ) now requires to be licensed; a chief officer of police will also be the licensing authority for the storage of smaller amounts of certain explosives by a person who is a registered firearms dealer under section 33 of the Firearms Act 1968 (Schedule 1); more tables are added than under the 2005 Regulations for providing a greater number of separation distances in respect of the storage of explosives (regulation 27 and Schedule 5); licences for the storage of explosives granted by local authorities can now be for up to 5 years instead of two (regulation 13(1)(a)); the record keeping requirements under the 1991 Regulations have, in regulation 35, been aligned more to those applying relation to civil explosives under EU law in regulation 36; and in line with the two sets of amendments to the Montreal Convention on the Marking of Plastic Explosives for the Purpose of Detection, which are referred to in paragraph 4, firstly, ortho-mononitrotoluene (o-MNT) is no longer listed as a detection agent for the purpose of marking plastic explosive and, secondly, the minimum concentration of the detection agent 2,3-Dimethyl-2,3-dinitrobutane (DMNB) is increased to 1.0% by mass; the levels of concentration required for detection agent apply at the time of the manufacture of the plastic explosive (regulation 38 and Schedule 8). The definition of “explosive” and related terms, such as “relevant explosive”, are included in regulation 2(1). The document called the “United Nations Recommendations” referred to in the definition of “explosive”, and the Manual of Tests and Criteria, fifth revised edition, which supports those Recommendations, can be downloaded free from the website of the United Nations at www.unece.org/trans/danger/publi/dg_publications.html. “Licensing authority” is defined in Schedule 1. It means a local authority or chief officer of police for applications for the storage within a site of no more than 2000 kilograms of explosives within paragraph (a)(i) or (b) of the definition of “explosive” in regulation 2(1). The Office for Nuclear Regulation, which was established on 1st April 2014, is a licensing authority for applications to manufacture or store explosives on an “ONR regulated site” (defined in regulation 2(1)). The Health and Safety Executive is the licensing authority where explosives are to be stored on the surface of a mine or within a harbour; it is the licensing authority in relation to the manufacture of explosives and the manufacture and storage of ANBI and in other cases. As under the 1991 Regulations, there is provision made (in regulation 32) for restrictions on the employment of a “prohibited person” where the employee would handle or have control of a “relevant explosive” or any “restricted substance”. These terms are defined in regulation 2(1), with an updated definition of “prohibited person”. These Regulations make provision in regulations 4 to 9 (Part 2) for a number of authorisations in relation to explosives: they provide for a licensing regime in relation to the manufacture and storage of explosives; an explosives certificate is required for acquiring or acquiring and keeping certain explosives; and, a recipient competent authority document is required for transfers of civil explosives. The Regulations provide for disapplications in respect of certain of its provisions (regulation 3). Part 3 provides for defences in relation to regulations 5 to 7 in Part 2. Part 4 concerns applications for and grant of authorisations. Part 5 makes provision for the variation and transfer of authorisations to manufacture or store explosives and for the case of death, bankruptcy or incapacity of a licensed person. Part 6 makes provision as to refusals of authorisations and Part 7 makes provision for revocations of authorisations and appeals against certain decisions. Part 8 makes provision for when a licensed site ceases to be, or becomes, a site regulated by the Office for Nuclear Regulation and determines who is to be regarded as having granted the licence. Parts 9 and 10 contain provisions on, respectively, the safety and security of explosives. Part 11 includes requirements as to the marking of civil explosives with a unique identification, record keeping and reporting losses of explosives. Part 12 provides for prohibitions on the manufacture, possession, transfer and importation of unmarked plastic explosives. Part 13 of the Regulations contains prohibitions on the placing of any explosives on the market unless they satisfy essential safety requirements, have been subject to conformity attestation procedure and have had the CE marking affixed to them (regulations 39 to 42). Part 14 provides for enforcement. Enforcement responsibility for provisions of the Regulations is set out in Schedule 11. Powers for the enforcement of the provisions in connection with the transfer, and the placing on the market, of civil explosives are set out in Schedule 12. Consequential amendments to existing primary and secondary legislation are made by regulation 48(1) and Schedule 13. Consequential repeals and revocations of legislation are made by regulation 48(2) and (3) and Schedule 14. Regulation 49 requires the Secretary of State to review the operation and effect of these Regulations and publish a report within 5 years after 1st October 2014 and within every 5 years after that. Following a review it will fall to the Secretary of State to consider whether these 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. A full impact assessment of the effect that these Regulations would have on the costs of business and the voluntary sector is published with the Explanatory Memorandum which is available alongside the instrument on www.legislation.gov.uk. The Transposition Notes in relation to the implementation of (a) Council Directive 93/15/EEC, as amended by Regulation (EC) No. 1882/2003, Regulation (EC) No. 219/2009 and Regulation (EU) No. 1025/2012 and (b) Commission Directive 2008/43/EC, as amended by Commission Directive 2012/4/EU, are published with the Explanatory Memorandum and available on that website. Copies of these documents are available in the libraries of both Houses of Parliament.

Read the full note and every offence in this 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 0.70.

Basis
the penalty comes from the enabling Act rather than from this instrument
Confidence
0.70 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