UK Offence Report

4 It is an offence for a person— a to fail to comply with a notice under regulation 61(1) requiring the…

regulation 38(4) of The Environmental Permitting (England and Wales) Regulations 2016

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

4 It is an offence for

a person—

a to fail to comply with

a notice under regulation 61(1) requiring the provision of information, without reasonable excuse;

b to make

a statement which the person knows to be false or misleading in

a material particular, or recklessly to make

a statement which is false or misleading in

a material particular, where the statement is made—

i in purported compliance with

a requirement to provide information imposed by or under

a provision of these Regulations,

ii for the purpose of obtaining the grant of an environmental permit to any person, or the variation, transfer in whole or in part, or surrender in whole or in part of an environmental permit, or

iii for the purpose of obtaining, renewing or amending the registration of an exempt facility;

c intentionally to make

a false entry in

a record required to be kept under an environmental permit condition;

d with intent to deceive—

i to forge or use

a document issued or authorised to be issued or required for any purpose under an environmental permit condition, or

ii to make or have in the person’s possession

a document so closely resembling such

a document as to be likely to deceive.

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 This is the text as originally made; later amendments are not shown here.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
An element of the offence, for the prosecution to prove

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, intentionally, recklessly, with intent to).

“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: mens rea word in the offence-creating words: intentionally, with intent to, recklessly, for the purpose of obtaining; qualified by reasonable excuse (an element; prosecution disproves once raised).

The defence, as drafted

er regulation 61(1) requiring the provision of information, without reasonable excuse; b to make a statement which the person knows to be false or misleading in a material particular, or recklessly to make a statement which is false or misleading in a material particular, where the statement is made— i in purported compliance with a requiremen

What would breach regulation 38(4)?

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. Entering a figure on a form or return that is known to be wrong under the Environmental Permitting (England and Wales) Regulations 2016.
  2. Leaving out something the form asks for, where the omission is what makes the answer misleading.
  3. 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.

Prosecution figures

The Ministry of Justice records offences under this instrument against offence code 9187 — 09187 - Triable either way offences under the Environmental Permitting (England and Wales) Regulations 2016 and the Environmental Protection (England) (Microbeads) Regulations 2017. 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
11 December 2016
In force from
Not determined
Extent
E+W

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 provide a consolidated system of environmental permitting in England and Wales. They replace the Environmental Permitting (England and Wales) Regulations 2010 (S.I. 2010/675). These Regulations transpose provisions of 15 Directives which impose obligations required to be delivered through permits or capable of being delivered through permits. Part 1 contains general provisions, in particular interpretation. Regulation 8 defines the term “regulated facility” and regulation 12 requires every regulated facility to be operated under the authority of an environmental permit. The combined classes of “regulated facility” include (unless they are exempt or excluded) every installation, mobile plant, waste operation, mining waste operation, radioactive substances activity, water discharge activity, groundwater activity and flood risk activities, whether or not carried on as part of the operation of another regulated facility. Those terms are defined in regulation 2(1) and in Schedules 1, 9, 20 to 23 and 25. The term “exempt facility” is defined in regulation 5. Schedule 2 sets out the procedures in relation to exempt facilities, including registration requirements. Part 2 sets out the procedures in relation to environmental permits. Regulations 13 (grant of a permit), 20 (variation of a permit), 21 (transfer of a permit) and 25 (surrender of a permit), with Part 1 of Schedule 5, regulate permit applications. Regulation 20 also provides for variation of a permit on the initiative of the regulator. Regulation 24 allows certain permits to be surrendered by notification. Regulation 15 and Part 2 of Schedule 5 provide for compensation where a permit condition requires interference with the property rights of a person other than the operator. Regulation 17 allows more than one regulated facility on the same site, or with the same operator, to be authorised by the same permit in some circumstances. Regulation 18 allows for the consolidation of separate permits. Regulations 22 and 23 provide for the revocation of a permit on the initiative of the regulator. Regulations 26 to 30 provide for the preparation of standard rules applying to a description of regulated facility, which may be incorporated into a permit at the request of an operator. Regulation 31 and Schedule 6 provide for appeals. Part 3 provide for the discharge of functions by the regulator in relation to permits. Regulation 32 sets the regulator for different classes or description of regulated facility and regulation 33 allows for a change of regulator at the direction of the Secretary of State or the Welsh Ministers. Regulation 34 requires the regulator periodically to review permits and to inspect regulated facilities. Regulation 35 and Schedules 7 to 25 require the regulator to exercise its functions so as to comply with the duties set out in those Schedules. Each Schedule requires the regulator to ensure compliance with a specified Directive or Directives (where applicable) when exercising its functions in relation to a regulated facility falling within the Schedule’s scope. Part 4 contains enforcement-related provisions. Regulations 36 and 37 provide for enforcement notices (requiring compliance with a permit) and suspension notices (suspending the authorisation of the operation of a regulated facility). Regulation 38 contains offences and regulation 40 provides for defences. Regulation 39 sets the penalties on conviction and provides for enforcement undertakings. Part 5 make provision for public registers to be kept by the regulator, including information which may be kept off the register in the interests of national security or because it is confidential in nature8 Part 6 confers powers on the regulator, Secretary of State and Welsh Ministers and imposes duties on the regulator. This Part includes power for the regulator to prevent or remedy pollution and to recover associated costs from the operator (regulation 57), a requirement on the appropriate agency to publish a public participation statement (regulation 60), and power for the Secretary of State or Welsh Ministers to make schemes setting fees and charges in relation to local authority functions under these Regulations. Part 7 contains miscellaneous provisions. By virtue of regulation 1(2), the provisions in Schedules 28 and 29 (revocations and consequential amendments) extend to England and Wales only. Regulation 80 requires the Secretary of State to review the operation and effect of these Regulations before the end of April 2019 and every 5 years thereafter and lay a report before Parliament. Full impact assessments of the effect that the Environmental Permitting (England and Wales) Regulations 2010 and its amending instruments where appropriate will have on the costs of business and the voluntary sector are available from the Air Quality and Industrial Emissions Team at the Department for Environment, Food and Rural Affairs, Nobel House, 17 Smith Square, London SW1P 3JR or at www.legislation.gov.uk. No separate impact assessment has been produced for this instrument. An updated transposition note is submitted with the Explanatory Memorandum which is available alongside the instrument on www.legislation.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 0.90.

Basis
the provision says “it is an offence”; the provision says an offence is committed “if” something happens
Confidence
0.90 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