UK Offence Report

Offences in respect of laws relating to mercury, enforcement notices and information

regulation 41(5) of The Control of Mercury (Enforcement) Regulations 2017

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

5 A person commits an offence if the person fails to produce

a document or record for an enforcing authority performing

a function pursuant to regulation 6.

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 This is the text as originally made; later amendments are not shown here.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 keep or produce records
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 41(5)?

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. Keeping no record at all of something the instrument requires to be recorded under the Control of Mercury (Enforcement) Regulations 2017.
  2. Keeping records, but discarding them before the end of the retention period the instrument sets.
  3. Being unable to produce a record on request because it is held somewhere it cannot be got at in the time allowed.

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

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
4 December 2017
In force from
Not determined
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 supplement Regulation EU 2017/852 of the European Parliament and of the Council on mercury (“the Mercury Regulation”) by establishing offences, penalties and enforcement powers relating to that Regulation. These Regulations also implement Article 17 of the Mercury Regulation which requires the designation of authorities responsible for performing functions under that Regulation. Regulation 5 defines “enforcing authority” as— a for England and offshore installations in the English offshore area, the Environment Agency; b for Northern Ireland, the Department of Agriculture, Environment and Rural Affairs (“DAERA”); c for Scotland and offshore installations in the Scottish offshore area, the Scottish Environment Protection Agency (“SEPA”); d for Wales, the Natural Resources Body for Wales (“NRW”). The definitions of England, Wales, Northern Ireland and Scotland include in each case an area of territorial sea adjacent to the United Kingdom (see regulation 3). Each area of territorial sea is defined by reference to co-ordinates set out in the Transfrontier Shipment of Waste Regulations 2007 (S.I. 2007/1711) (“the TSWR 2007”). The English offshore area and the Scottish offshore area are areas of sea which lie beyond the territorial sea adjacent to the United Kingdom (see Schedule 2). The co-ordinates of the Scottish border (which is used to differentiate the English offshore area and the Scottish offshore area) coincide with the relevant co-ordinates of the Scottish border within the meaning given by regulation 4A(2) of the TSWR 2007. Part 2 provides for civil enforcement by the Environment Agency and NRW who may— a give enforcement notices requiring a person to take action (including to stop doing any thing); b take action where an action in an enforcement notice has not been complied with; c give a penalty notice to a person requiring payment of a civil penalty not exceeding £200,000; d give a costs recovery notice requiring payment of costs relating to enforcement; e start proceedings in the County Court or High Court where other remedies would be ineffectual. A person may appeal to the First-tier Tribunal against an enforcement notice, civil penalty decision or a costs recovery notice (see regulations 8(8), 10(11), 13(11) and 15). Parts 3 and 4 respectively provide for enforcement by DAERA and SEPA who may— a give enforcement notices requiring a person to take action (including to stop doing any thing); b take action where an action in an enforcement notice has not been complied with; c give a costs recovery notice requiring payment of costs relating to enforcement. A person may appeal to the planning appeals commission in Northern Ireland against an enforcement notice or costs recovery notice given by DAERA. A person may appeal to the Scottish Ministers against an enforcement notice or costs recovery notice given by SEPA. Further provisions relating to appeals to the Scottish Ministers are set out in Schedule 3. Regulation 32 amends the Environmental Regulation (Enforcement Measures) (Scotland) Order 2015 (the “ERO 2015”) to add the offences in regulation 41 to the list of offences for which SEPA may take enforcement action under the ERO 2015. Regulation 33 confers power on customs officials to assist with enforcement by seizing and detaining material. Regulation 34 confers power on the enforcing authority and Welsh Ministers to share information obtained during the performance of certain functions related to the Mercury Regulation with other persons. Regulation 35 confers power on the enforcing authority to give information notices requiring a person to give information. Regulation 39 confers power on the Secretary of State to assist with enforcement in respect of offshore installations. Part 7 creates offences relating to the provisions of the Mercury Regulation which are listed in Schedule 1, enforcement notices, information notices and activities performed under the Regulations by customs officials and the Secretary of State. Part 8 contains amendments to other legislation. A full regulatory impact assessment has not been produced for this instrument as no impact on the private or voluntary sectors is foreseen.

Read the full note and every offence in this instrument

How this became law

This instrument became law without a debate or a vote. Under the negative procedure it took effect unless a motion to stop it succeeded, and none was tabled.

Neither House could have amended it. A statutory instrument is put to each House as a whole thing, to be approved or not; the Houses can reject an instrument or record their regret, but they cannot change a word of it. That is the constitutional position for every offence on this site.

The full procedural history →

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 0.92.

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