UK Offence Report

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

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 This is the text as originally made; later amendments are not shown here.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.

  1. 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.
  2. 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.

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.

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