UK Offence Report

Further offences relating to the prohibitions etc. in the torture Regulation

article 36A(5) of The Export Control (Amendment) (No. 2) Order 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 who knowingly fails to comply with Article 7a(1) or 7e(1) with intent to evade the requirements in those Articles commits an offence and may be arrested.

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 This is the text as originally made; later amendments are not shown here.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
Requires proof of a state of mind
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove both that the conduct happened and that it was done with the state of mind the provision names (knowingly, with intent to).

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

Classifier’s reasoning: mens rea word in the offence-creating words: knowingly, with intent to.

What would breach article 36A(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. On these words an offence is committed where a person knowingly fails to comply with Article 7a(1) or 7e(1) with intent to evade the requirements in those Articles.
  2. Not doing what the provision requires under the Export Control (Amendment) (No. 2) Order 2017, 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
£1,000
Standard scale
Level 3
Maximum prison (summary)
6 months
Maximum prison (on indictment)
2 years

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
20 February 2017
In force from
17 March 2017
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 Order) — the explanatory note published with the instrument, © Crown copyright.

This Order amends the Export Control Order 2008 (S.I. 2008/3231) (the “ECO”) to make provision for the enforcement of trade restrictions in relation to certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment as specified in Regulation (EU) 2016/2134 of the European Parliament and of the Council (OJ L 338, 13.12.2016, p. 1) (the “Amending Regulation”). The Amending Regulation amends Council Regulation (EC) No 1236/2005 (OJ L 200, 30.7.2005, p. 1) (the “torture Regulation”). This Order also makes certain minor and consequential amendments to implement the Amending Regulation. Article 2(2) of this Order amends the ECO to allow for the issuance of Union General Export Authorisations under the torture Regulation pursuant to Article 1(11) of the Amending Regulation. Article 2(3) of this Order amends the ECO as a consequential amendment to reflect the amendments to the torture Regulation made by Article 1(11) of the Amending Regulation. Article 2(4) of this Order inserts into the ECO a number of offences in relation to the prohibitions and authorisation requirements introduced by the Amending Regulation into the torture Regulation. An Impact Assessment has not been prepared in respect of this Order as minimal or no impact on the private or voluntary sectors is foreseen. An Explanatory Memorandum is available alongside the instrument on the www.legislation.gov.uk website. Copies have also been placed in the Libraries of both Houses of Parliament.

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 “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