Offences related to EU authorisation

Q: Is article 6(1) of The Export Control (Democratic Republic of Congo Sanctions and Miscellaneous Amendments and Revocations) Order 2015 a strict liability offence?

The prosecution must prove both that the conduct happened and that it was done with the state of mind the provision names (for the purpose of obtaining, recklessly).

article 6(1) of The Export Control (Democratic Republic of Congo Sanctions and Miscellaneous Amendments and Revocations) Order 2015

Status not determined
Requires proof of a state of mind
International sanctions, export control and trade restrictions

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

1 A person commits an offence and may be arrested who, for the purpose of obtaining an EU authorisation—
a makes any statement or furnishes any document or information which to that person’s knowledge is false in
a material particular; or
b recklessly makes any statement or furnishes any document or information which is false in
a material particular.

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 This is the text as originally made; later amendments are not shown here.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: making a false or misleading statement
Fault element: Requires proof of a state of mind
Burden of proof: No statutory defence — prosecution proves everything

The prosecution must prove both that the conduct happened and that it was done with the state of mind the provision names (for the purpose of obtaining, recklessly).

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: mens rea word in the offence-creating words: recklessly, for the purpose of obtaining.

What would breach article 6(1)?

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.

Entering a figure on a form or return that is known to be wrong under the Export Control (Democratic Republic of Congo Sanctions and Miscellaneous Amendments and Revocations) Order 2015.
Leaving out something the form asks for, where the omission is what makes the answer misleading.
Producing a document to an official that has been altered since it was issued.

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.

Sentencing organisations: fines and the means of a corporate defendant All courts in England and Wales
How a fine on a company is arrived at from its turnover. Relevant far beyond the guidelines that state it, because a very large share of the offences in this corpus can only be committed by an organisation.
Fraud, bribery and money laundering offences: definitive guideline Magistrates' courts and the Crown Court in England and Wales · in force from 1 October 2014
Covers fraud, false accounting, bribery and money laundering, including offences committed by organisations.
Reduction in sentence for a guilty plea: definitive guideline All courts in England and Wales · in force from 1 June 2017
The sliding scale of credit for pleading guilty, from one third at the first stage of proceedings downwards.
General guideline: overarching principles All courts in England and Wales · in force from 1 October 2019
The guideline a court uses when there is no offence-specific guideline, which is the position for the overwhelming majority of offences created by statutory instrument. It sets out how culpability and harm are assessed from first principles.
Totality: definitive guideline All courts in England and Wales
How to sentence more than one offence at once so that the total is just and proportionate - frequently in point here, because regulatory prosecutions commonly charge several breaches of the same instrument.

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 July 2015
In force from: 11 August 2015
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 Order makes provision for the enforcement of certain trade restrictions against the Democratic Republic of Congo specified in Council Regulation (EC) No 1183/2005 (OJ No L 193, 23.7.2005, p.1), as amended by Council Regulation (EU) 2015/613 (OJ No L 102, 21.4.2015, p.3) (“the Democratic Republic of Congo Regulation”). The Order sets out offences in relation to these prohibitions and those offences can be committed by any person in the United Kingdom and, around the world, by any United Kingdom person, as defined in section 11 of the Export Control Act 2002 (c. 28). The trade restrictions against the Democratic Republic of Congo are a prohibition on the provision of technical assistance or brokering services related to the goods and technology listed in the Common Military List to any non-governmental entity or person operating in the territory of the Democratic Republic of Congo and a prohibition on the provision of financing or financial assistance related to the sale, supply etc. of goods and technology listed in the Common Military List to any non-governmental entity or person operating in the territory of the Democratic Republic of Congo. Article 2 revokes the Orders listed in the Schedule to this Order. This includes the Export Control (Democratic Republic of Congo) Order 2005 (S.I. 2005/1677) and amending instruments. The Export Control (Guinea) Order 2010 and the Export Control (Amendment) (No. 4) Order 2009, which makes Guinea an embargoed destination for the purpose of the trade controls of the Export Control Order 2008 (S.I. 2008/3231), are also revoked. Article 4 creates offences for contravention of the trade restrictions in Article 1a of the Democratic Republic of Congo Regulation. Article 5 creates offences for the circumvention of the prohibitions in the Democratic Republic of Congo Regulation. Article 6 supplements the provisions of the Democratic Republic of Congo Regulation that allow a competent authority to authorise activities that are otherwise prohibited. Article 6(1) makes it an offence knowingly and recklessly to provide false information for the purpose of obtaining an authorisation and Article 6(3) makes it an offence to fail to comply with authorisation requirements or conditions. Article 7 sets out the penalties relating to the offences in the Order. Article 8 provides for the ancillary provisions which apply to the enforcement of customs and excise legislation to also apply to the enforcement of this Order. Article 9 amends the Export Control (Sudan, South Sudan and Central African Republic Sanctions) Regulations 2014 (S.I. 2014/3258), which make provision for the enforcement of certain trade restrictions against South Sudan specified in Council Regulation (EU) No 748/2014 (OJ No L 203, 11.7.2014, p13). This Regulation is repealed and replaced by Council Regulation (EU) 2015/735 (OJ No L 117, 8.5.2015, p13). Article 9 substitutes for the reference to Council Regulation (EU) No 748/2014, a reference to Council Regulation (EU) 2015/735 and makes consequential amendments. By Council Decision 2014/213/CFSP, the European Union lifted the arms embargo, and the embargo on equipment which might be used for internal repression, against Guinea. Article 10 removes Guinea from the list of “embargoed destinations” in Part 2 of Schedule 4 to the Export Control Order 2008 and inserts Guinea into the list of destinations subject to transit control for category B goods in Part 4 of that Schedule. Article 10 also removes Sierra Leone from the list of countries subject to transit control for military goods in Part 3 of Schedule 4 and inserts Sierra Leone into the list of destinations in Part 4 of that Schedule. Article 11 amends the definition of “the Syria Regulation” in the Export Control (Syria Sanctions) Order 2013. Article 12 requires the Secretary of State to review the operation and effect of this Order and publish a report within five years after it comes into force and within every five years after that. Following a review it will fall to the Secretary of State to consider whether the Order should remain as it is, or be revoked or amended. A further instrument would be needed to revoke the Order or to amend it. A regulatory impact assessment has not been produced for this instrument as it has no or minimal impact on business, charities or voluntary bodies. A copy of the Explanatory Memorandum is published alongside the Order on www.legislation.gov.uk. Further information is available from the Export Control Organisation, BIS, 1 Victoria Street, London SW1H 0ET and on the gov.uk website (www.gov.uk).

Read the full note and every offence in this instrument

Other offences in the same instrument

Unless authorised by an EU authorisation, a person who is knowingly concerned in an activity prohibited by…article 4
Circumvention of prohibitionsarticle 5(1)
Circumvention of prohibitionsarticle 5(2)
A person who, having acted under the authority of an EU authorisation, fails to comply with a requirement or…article 6(3)

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

This provision on legislation.gov.uk The authoritative text. Check it before relying on anything here.
The Export Control (Democratic Republic of Congo Sanctions and Miscellaneous Amendments and Revocations) Order 2015 Every offence this instrument creates, and its explanatory note
International sanctions, export control and trade restrictionsOther offences on the same subject
Offences created in 2015