1 Any person on whom a non-publication notice is served under article 8(1) commits an offence if the person,…
article 11(1) of The Reservoirs (Scotland) Act 2011 (Restrictions on Disclosure of Information in relation to National Security etc.) Order 2015
- Status not determined
- Strict liability
- Either way
- Energy, communications, water and utilities
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 Any person on whom a non-publication notice is served under article 8(1) commits an offence if the person, without reasonable excuse, fails to comply with— a a requirement of the notice; or b article 9, in so far as that article applies in relation to the notice.
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 This is the text as originally made; later amendments are not shown here.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
- failing to do something the instrument requires
- Fault element
- Strict liability
- Burden of proof
- An element of the offence, for the prosecution to prove
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.
“Without reasonable excuse” here is an element of the offence rather than a defence, so its absence is for the prosecution to prove (R v Charles [2009] EWCA Crim 1570).
Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision; qualified by reasonable excuse (an element; prosecution disproves once raised).
The defence, as drafted
served under article 8(1) commits an offence if the person, without reasonable excuse, fails to comply with— a a requirement of the notice; or b article 9, in so far as that article applies in relation to the notice.
What would breach article 11(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.
- Not doing what the provision requires under the Reservoirs (Scotland) Act 2011 (Restrictions on Disclosure of Information in relation to National Security etc.) Order 2015, by the time it requires it to be done.
- Doing it, but not in the manner or to the standard the instrument specifies.
Penalty
- Mode of trial
- Either way — magistrates’ court or Crown Court
- Maximum fine
- Unlimited
- Maximum prison (summary)
- Not determined
expressed as the statutory maximum (the prescribed sum): the same words mean £5,000 in England and Wales and £10,000 in Scotland.
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.
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Environmental offences: definitive guideline
Magistrates' courts and the Crown Court in England and Wales · in force from 1 July 2014
Covers unauthorised or harmful deposit, treatment or disposal of waste, illegal discharges to air, land and water, and the equivalent offences committed by organisations. It is the guideline that introduced turnover bands for corporate fines, so the size of the defendant company is a starting point rather than a mitigating detail.
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Health and safety offences, corporate manslaughter and food safety and hygiene offences: definitive guideline
Magistrates' courts and the Crown Court in England and Wales · in force from 1 February 2016
Covers breaches of duty under the Health and Safety at Work etc. Act 1974 and the regulations made under it, and food safety and food hygiene offences. Sentencing turns on culpability and on the seriousness and likelihood of harm risked, not only on the harm that happened.
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Imposition of community and custodial sentences: definitive guideline
All courts in England and Wales
When a community order or custody is justified at all, and the presumption against short custodial sentences.
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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.
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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.
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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
- 21 January 2015
- In force from
- Not determined
- Extent
- E+W+S
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.
This Order makes provision in consequence of the Reservoirs (Scotland) Act 2011 (“the Act”) including, in particular, section 9 (controlled reservoirs register) and section 55 (flood plans). Section 9 of the Act requires the Scottish Environment Protection Agency (“SEPA”) to maintain a register containing, among other things, a map showing the area of land which would be likely to be flooded in the event of an uncontrolled release of water from a controlled reservoir. Section 55 of the Act empowers the Scottish Ministers to make provision in relation to the preparation of flood plans for controlled reservoirs setting out the action to be taken by the reservoir managers to control or mitigate the effects of flooding from any escape of water from any such reservoir. Article 3 empowers the Secretary of State, if of the opinion that disclosure of information about a controlled reservoir would be contrary to the interests of national security, to serve a notice on the Scottish Ministers or SEPA in relation to that information. The effect of such a notice is to require the exclusion of the information from the controlled reservoirs register and to prohibit the disclosure of the information by Scottish Ministers or SEPA. In addition, if the notice states that article 4 applies to any information in the notice, the Scottish Ministers or, as the case may be, SEPA must not give to any person any indication of the existence of that information (article 4). Article 5 provides that any restrictions on the disclosure of information imposed by articles 3(3) and 4 do not apply to the extent that they would prevent the Scottish Ministers and SEPA from complying with any duty imposed on them by virtue of the Environmental Information (Scotland) Regulations 2004, the Freedom of Information (Scotland) Act 2002, a constable acting in the course of the constable’s duties or a court order. Article 6 empowers the Secretary of State to revoke a notice served under article 3(1). Article 8 empowers the Secretary of State, if of the opinion that publication of a flood plan or any information in relation to a flood plan would be contrary to the interests of national security, to serve a non-publication notice on any relevant person. The effect of such a notice is to prohibit the publication of the information, except as may be permitted by the notice. In addition, if the notice states that article 9 applies to any information in the notice, the person on whom it is served must not give to any other person any indication of the existence of that information (article 9). Article 10 empowers the Secretary of State to revoke a notice served under article 8(1). Article 11 contains offence provisions and article 12 makes specific provision in relation to offences by bodies corporate. Article 13 provides that nothing done by virtue of this Order prevents the Scottish Ministers and SEPA from sharing information. Article 14 provides that the duty in section 9(1) of the Act to include information in a controlled reservoirs register does not apply to information specified in a non-disclosure notice served under article 3(1). It also provides that any duty imposed by regulations under section 55(1) of the Act to publish a flood plan (or any information relating to a flood plan) does not apply in relation to information specified in a non-disclosure notice served under article 3(1) or to the extent that the duty is prevented by virtue of a requirement of a non-publication notice served under article 8(1). Article 15 updates the definition “the Scottish regime” in paragraph 43 of Schedule 4 to the Flood and Water Management Act 2010 with effect from the date on which the Reservoirs Act 1975 is, in so far as it extends to Scotland, repealed. Article 16 makes provision in relation to Crown application. A full impact assessment has not been produced for this instrument as no impact on the private sector and civil society organisations is foreseen.
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.
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Reservoirs (Scotland) Act 2011 (Restrictions on Disclosure of Information in relation to National Security etc.) Order 2015
Lords · 13 January 2015 · Lord Wallace of Tankerness
That the Grand Committee do consider the Reservoirs (Scotland) Act 2011 (Restrictions on Disclosure of Information in relation to National Security etc.) Order 2015. Relevant document: 14th Report from the Joint Committee on Statutory Instruments
- Reservoirs (Scotland) Act 2011 (Restrictions on Disclosure of Information in relation to National Security etc.) Order 2015 Lords · 13 January 2015
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Business without Debate
Commons · 14 January 2015
That the draft Reservoirs (Scotland) Act 2011 (Restrictions on Disclosure of Information in relation to National Security etc.) Order 2015, which was laid before this House on 18 November 2014, be approved. —(Mr Foster.)
- Reservoirs (Scotland) Act 2011 (Restrictions on Disclosure of Information in relation to National Security etc.) Order 2015 Lords · 20 January 2015
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 Reservoirs (Scotland) Act 2011 (Restrictions on Disclosure of Information in relation to National Security etc.) Order 2015 Every offence this instrument creates, and its explanatory note
- Energy, communications, water and utilitiesOther offences on the same subject
- Offences created in 2015