UK Offence Report

Amendment of the Civil Aviation (Denied Boarding, Compensation and Assistance) Regulations 2005

regulation 5(2) of The Air Passenger Rights and Air Travel Organisers' Licensing (Amendment) (EU Exit) Regulations 2019

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

2 In regulation 3 (offences) for paragraph (1), substitute— 1 An operating air carrier is guilty of an offence if, in the United Kingdom or elsewhere, it fails to comply with an obligation imposed on it by Article 4, 5, 6, 10, 11 or 14 in respect of a passenger whose flight is either from— a an airport in the United Kingdom, or b a country which is not an EEA state to such an airport. .

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 This is the text as originally made; later amendments are not shown here.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 operating air carrier
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 operating air carrier 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 5(2)?

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 Air Passenger Rights and Air Travel Organisers' Licensing (Amendment) (EU Exit) Regulations 2019, 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
Not determined
Maximum fine
Not determined
Maximum prison (summary)
Not determined

no penalty is stated here: this instrument amends another one, and the penalty for the offence is in the instrument being amended.

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
15 February 2019
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 are made in exercise of the powers in section 8(1) of and paragraph 21 of Schedule 7 to the European Union (Withdrawal) Act 2018 (c. 16) (“the 2018 Act”) in order to address failures of retained EU law to operate effectively and other deficiencies arising from the withdrawal of the United Kingdom from the European Union. Regulation 6 contains provision for this purpose made under section 71 of the Civil Aviation Act 1982 (c. 16). These Regulations also include provision at regulation 5(2) made under section 2(2) of the European Communities Act 1972 (c. 68). These Regulations make amendments to legislation in the field of aviation, relating to the rights of passengers and the Air Travel Organisers’ Licensing (“ATOL”) scheme. Part 2 (regulation 2) makes a consequential amendment to the Carriage by Air Act 1961 to reflect changes made to Council Regulation (EC) No 2027/97 by Part 4 of these Regulations. In Part 3, regulations 3 and 4 make consequential amendments to subordinate legislation to reflect changes made to Council Regulation (EC) No 2027/97 by Part 4 of these Regulations. Regulation 5(2) widens offences for breaches of certain provisions of Regulation (EC) No 261/2004 to cover breaches committed abroad. It comes into force 22 days after these Regulations are made. On EU exit, regulation 5(3) will further amend the offences for breach of those provisions, to align the scope of those offences with the scope of Regulation (EC) No 261/2004 as amended by Part 4 of these Regulations. Regulation 6 makes changes to the ATOL scheme in light of the withdrawal of the United Kingdom from the EU, including at regulation 6(3) to (6) removal of provision which is based on mutual recognition of insolvency protection measures. Part 4 amends Council Regulation (EC) No 2027/97 which concerns the obligations of air carriers as regards liability in relation to injury to passengers and damage to baggage; Regulation (EC) No 261/2004 which concerns the rights of passengers if they are denied boarding against their will, or their flight is cancelled or delayed; and Regulation (EC) No 1107/2006 which concerns the rights of disabled passengers and those with reduced mobility to access air transport and receive free-of-charge assistance to enable them to use it on an equal footing with other passengers. The amendments to these EU Regulations are made to ensure that they operate effectively as part of retained EU law by addressing deficiencies falling within section 8(2)(a) and (b) of the 2018 Act. For example, these Regulations remove redundant references to EU entities and concepts (e.g. Member States, the Community and Commission). A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sector is foreseen. An Explanatory Memorandum has been published alongside these Regulations and is available with these Regulations at www.legislation.gov.uk.

Read the full note and every offence in this 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