UK Offence Report

Offences in connection with information requirements

regulation 23(1) of The Open Internet Access (EU Regulation) 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

1 A person who fails to provide information in accordance with an information requirement is guilty of an offence and will be liable— a on summary conviction, to a fine in England and Wales, or in Scotland and Northern Ireland to a fine not exceeding the statutory maximum; b on conviction on indictment, to a fine.

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 This is the text as originally made; later amendments are not shown here.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
No statutory defence — prosecution proves everything

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.

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

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

What would breach regulation 23(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. On these words an offence is committed where a person fails to provide information in accordance with an information requirement.
  2. Not doing what the provision requires under the Open Internet Access (EU Regulation) Regulations 2016, by the time it requires it to be done.
  3. 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
Maximum prison (on indictment)
2 years

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
24 May 2016
In force from
17 June 2016
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 implement certain provisions of Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25th November 2015 laying down measures concerning open internet access and amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 on roaming on public mobile communications networks within the Union (“the EU Regulation”) (OJ No L 310, 26.11.2015, p 1). Article 5(1) of the EU Regulation requires national regulatory authorities to closely monitor and ensure compliance with Articles 3 and 4 of that Regulation, and to promote the continued availability of non-discriminatory internet access services at levels of quality that reflect advances in technology. For those purposes, national regulatory authorities may impose requirements concerning technical characteristics, minimum quality of service requirements and other appropriate and necessary measures on one or more providers of electronic communications to the public, including providers of internet access services. Article 6 of the EU Regulation requires that member States lay down the rules on penalties applicable to infringements of Articles 3, 4 and 5 of that Regulation. Regulations 2 and 3 make provision governing the giving of notifications and the sending of other documents under these Regulations. Regulation 4 designates OFCOM as the national regulatory authority for the purposes of Articles 3, 4 and 5 of the EU Regulation. Regulation 5 requires OFCOM, when performing its functions under the EU Regulation or these Regulations, to take due account of all applicable guidelines issued by BEREC in accordance with Article 5(3) of the EU Regulation. Regulation 6 gives OFCOM the power to certify one or more monitoring mechanisms, as envisaged by Article 4(4) of the EU Regulation. Article 4(4) provides that any significant continuous or regularly recurring discrepancy, where established by a monitoring mechanism certified by the national regulatory authority, between the actual performance of an internet access service regarding speed or other quality of service parameters and the performance indicated by the provider in the contract, should be deemed to constitute non-conformity of performance for the purposes of triggering the remedies available to the consumer in accordance with national law. Guidelines issued by BEREC will specify criteria for and make recommendations in relation to such monitoring mechanisms. In accordance with regulation 5 of these Regulations, in certifying monitoring mechanisms, OFCOM must take due account of all applicable guidelines issued by BEREC. Regulations 7 to 15 make provision for OFCOM to impose, modify or revoke requirements to ensure compliance with Articles 3 and 4 of the EU Regulation or to ensure the continued availability of non-discriminatory internet access services at levels of quality that reflect advances in technology. These Regulations also make provision concerning directions, approvals and consents, which can be given by OFCOM or another person, for the purposes of a requirement, and for consultation for requirements and for directions, approvals and consents. Regulation 17 contains provisions relating to OFCOM’s powers to obtain information that they consider necessary for the purpose of carrying out their functions under the EU Regulation and these Regulations. Regulation 19 provides for a notification procedure where OFCOM determine that there has been a breach of Articles 3, 4 or 5(2) of the EU Regulation or these Regulations (“a relevant breach”). Regulation 20 gives OFCOM the power to impose a penalty for a relevant breach. Regulation 21 provides for the amount of penalty which may be imposed under regulation 20. A penalty of up to £2,000,000 may be imposed for breach of an information requirement. A penalty of up to 10% of the turnover of “relevant business” as defined in these Regulations may be imposed by OFCOM for all other breaches of the EU Regulation or these Regulations. Regulation 22 provides for a confirmation procedure where OFCOM is satisfied that a person has been in breach of an obligation specified in a notification given under regulation 19 of these Regulations. A person who is given a confirmation decision is under a duty to comply with it. OFCOM can enforce that duty through civil proceedings. Regulation 23 makes it a criminal offence to breach an information requirement and sets out the relevant penalties. Regulation 24 specifies how the turnover of “relevant business” is to be calculated for the purposes of regulation 21 of these Regulations. Regulation 25 requires OFCOM to pay any financial penalties received under these Regulations into the Consolidated Fund. Regulation 27 to 29 provide that a person affected by a decision of OFCOM (or, where relevant, another person) under the EU Regulation or these Regulations may appeal that decision to the Competition Appeal Tribunal. Decisions of the Competition Appeal Tribunal may be appealed on a point of law to the Court of Appeal or the Court of Session in Scotland. Regulation 30 requires the Secretary of State to review the operation and effect of these Regulations and publish a report within five years after they come into force and within every five years after that. Following a review it will fall to the Secretary of State to consider whether the 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. An impact assessment of the effect that this instrument will have on the costs of business is available from the Department of Culture, Media and Sport at 100 Parliament Street, London, SW1A 2BQ and is published with the Explanatory Memorandum alongside the instrument on www.legislation.gov.uk. A Transposition Note has been produced for these Regulations and is published with the Explanatory Memorandum alongside the instrument on www.legislation.gov.uk.

Read the full note and every offence in this instrument

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 0.92.

Basis
the provision says a person is “guilty of 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