UK Offence Report

Trade offences in CEMA: modification of penalty

regulation 116(3) of The Democratic People's Republic of Korea (Sanctions) (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

3 Paragraph (4) applies where

a person is guilty of an offence under section 68(2) of CEMA in connection with

a prohibition mentioned in regulation 35, 43(1), 44(1), 45, 51(1) or 52(1) (exports).

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 This is the text as originally made; later amendments are not shown here.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
importing or exporting without authority
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 116(3)?

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. Moving the goods across the border under the Democratic People's Republic of Korea (Sanctions) (EU Exit) Regulations 2019 without the licence the instrument requires.
  2. Holding a licence for one consignment and using it for another.
  3. Sending goods in transit through the United Kingdom, where the provision catches transit as well as import and export.

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
5 March 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 under the Sanctions and Anti-Money Laundering Act 2018 (c.13) to establish a sanctions regime in relation to the Democratic People’s Republic of Korea (DPRK) for the purposes of implementing many of the obligations that the United Kingdom has under UN Security Council Resolution 1718 (2006), 1874 (2009), 2087 (2013), 2094 (2013), 2270 (2016), 2321 (2016), 2356 (2017), 2371(2017), 2375(2017), and 2397 (2017). They also have the purposes of restricting the ability of the DPRK to carry on its nuclear, biological or chemical weapons programmes, other weapons of mass destruction programmes and ballistic missile programmes, to promote the abandonment of those programmes and the decommissioning of the weapons, and to promote peace, security and stability on the Korean peninsula. Following the UK’s withdrawal from the European Union, these Regulations replace the sanctions measures in relation to DPRK which are currently implemented through and under an EU Council Decision and Regulation. Part 2 of the Regulations confers a power on the Secretary of State to designate persons who are, or have been, involved in certain activities, and makes provision for notification and publicity of such designations. It also provides for persons who are named by the UN to be designated persons. Designated persons are subject to various sanctions measures set out in subsequent Parts of the Regulations. Part 3 of the regulations confers a power on the Secretary of State to specify ships for the purposes of various sanctions measures. It also makes provision in respect of notification and publicity where the power to specify a ship is used. Chapter 1 of Part 4 provides for designated persons to be made subject to financial sanctions, including having their funds and/or economic resources frozen. Chapter 2 of Part 4 imposes further restrictions on the activities of designated persons and also on financial services, commercial activities and investment. Part 5 provides for persons designated by the Secretary of State to be “excluded persons” under section 8B of the Immigration Act 1971, meaning generally that they must be refused leave to enter the United Kingdom and leave to remain in the United Kingdom, and any leave that has been granted is invalid. Part 6 deals with trade restrictions on specified goods and technology. Related controls are also imposed on the provision of financial services and funds, technical assistance and brokering services. Chapter 1 deals with the restrictions on military and dual-use goods and technology, and other goods and technology related to arms and weapons of mass destruction (all as defined in the Regulations, including Schedule 2). Chapter 2 deals with restrictions on other goods. Chapter 3 deals with restrictions on certain services related to ships and aircraft. Part 7 deals with restrictions on aviation and Part 8 with restrictions on shipping. Part 9 provides for certain exceptions to this sanctions regime. Regulations 90, 91 and 92also confer powers on the Secretary of State to issue licences in respect of activities that would otherwise be prohibited under the sanctions measures imposed by Parts 6, 7 and 8. Regulations 88 and 89 confer powers on the Treasury to issue licences or directions to authorise activities which would otherwise be prohibited by Part 4, or to issue directions that certain requirements in Part 4 have effect subject to exceptions. Schedule 3 to these Regulations sets out further provision about the purposes for which the Treasury will issue licences in some cases. Regulation 93 makes additional provision in relation to licences, and regulation 94 makes additional provision in relation to directions. Regulation 98 makes provision about directions in relation to the Immigration Act 1971. This Part also provides for related offences. Part 10 of the Regulations confers powers for obtaining and disclosing information to enable the effective implementation and enforcement of the sanctions regime, and impose obligations on various persons to report relevant information to the appropriate (specified) authorities. In Part 11, the Regulations prescribe the mode of trial and penalties that apply to offences under the Regulations. They also provide for the application of similar types of provision in the Customs and Excise Management Act 1979 to certain offences related to trade. In Part 12 the Regulations also confer powers on specified maritime enforcement officers to stop and search ships in international and foreign waters for the purpose of enforcing specified trade sanctions and to seize goods found on board ships which are being, or have been, dealt with in contravention, or deemed contravention, of those prohibitions. Part 13 contains supplemental and transitional provision and revocations. Regulations 127 and 128 make provision in relation to the interaction of these Regulations with the Export Control Order. Regulations 129 and 130 amend or revoke a number of instruments which currently implement sanctions measures against the DPRK: Council Regulation (EU) No 2017/1509 of 30 August 2017 concerning restrictive measures against the Democratic People’s Republic of Korea and repealing Regulation (EC) No 329/2007, the North Korea (United Nations Sanctions) Order 2009, the Democratic People’s Republic of Korea (European Union Financial Sanctions) Regulations 2017 and the Export Control (North Korea Sanctions) Order 2018. The UN Security Council resolutions can be obtained from https://www.un.org/securitycouncil/content/resolutions . The lists approved by the Committee of the Security Council established by paragraph 12 of resolution 1718 (2016) which are referred to in regulation 64 are available from https://www.un.org/securitycouncil/sanctions/1718/prohibited-items. The Harmonized Commodity Description and Coding System under the International Convention on the Harmonized System as done in Brussels on 14 June 1983 is available at http://www.wcoomd.org/en/topics/nomenclature/instrument-and-tools/hs-nomenclature-2017-edition/hs-nomenclature-2017-edition.aspx. A copy may be inspected free of charge by arrangement with HM Revenue and Customs at 100 Parliament Street, London SW1A 2BQ. An Impact Assessment has not been produced for these Regulations, as the instrument is intended to ensure existing sanctions remain in place following EU exit. This instrument is intended to substantially deliver the same policy effects as the existing EU sanctions. An impact assessment was, however, produced for the primary legislation and can be found at https://publications.parliament.uk/pa/bills/lbill/20172019/0069/sanctions-and-anti-money-laundering-IA.pdf.

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 is “guilty of an offence”; c10_offence_under_parent_act
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