UK Offence Report

Trade: information offences

paragraph 35A(1) of SCHEDULE 2 of The Afghanistan (Sanctions) (Overseas Territories) Order 2020

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 commits an offence if that person—

a without reasonable excuse, refuses or fails within the time and in the manner specified (or, if no time has been specified, within

a reasonable time) to comply with any request under regulation 35 (trade: information powers);

b knowingly or recklessly gives any information, or produces any document, which is false in

a material particular in response to such

a request;

c with intent to evade any provision of regulation 35, destroys, mutilates, defaces, conceals or removes any document;

d otherwise intentionally obstructs an authorised officer in the exercise of their powers under regulation 35.

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 This is the text as originally made; later amendments are not shown here.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
obstructing an official exercising a power
Fault element
Requires proof of a state of mind
Burden of proof
An element of the offence, for the prosecution to prove

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

“Without reasonable excuse” here is an element of the offence rather than a defence, so its absence is for the prosecution to prove (R v Charles [2009] EWCA Crim 1570).

Classifier’s reasoning: mens rea word in the offence-creating words: knowingly, intentionally, with intent to, recklessly, knowingly or recklessly; qualified by reasonable excuse (an element; prosecution disproves once raised).

The defence, as drafted

1 A person commits an offence if that person— a without reasonable excuse, refuses or fails within the time and in the manner specified (or, if no time has been specified, within a reasonable time) to comply with any request under regulation 35 (trade: information powers); b knowingly or recklessly gives any information, or produce

What would breach paragraph 35A(1) of SCHEDULE 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. Refusing to let an inspector onto premises they are entitled to enter under the Afghanistan (Sanctions) (Overseas Territories) Order 2020.
  2. Sending an official away, or telling staff to say nothing, where the power being exercised does not depend on anyone's consent.
  3. Physically blocking an examination, or removing something an officer has said they intend to inspect.

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
11 November 2020
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 Order) — the explanatory note published with the instrument, © Crown copyright.

This Order extends with modifications the Afghanistan (Sanctions) (EU Exit) Regulations 2020 (S.I. 2020/948) (“the Afghanistan Regulations”) as amended from time to time to all British overseas territories except Bermuda and Gibraltar (which implement sanctions under their own legislative arrangements). It also implements in those territories the travel ban in respect of UN designated persons required by paragraph 1(b) of resolution 2255 (2015) adopted by the Security Council on 21st December 2015 (which in the United Kingdom is implemented by way of the Immigration Act 1971 (c.77) rather than the Afghanistan Regulations). Section 63(3)(c) of the Sanctions and Anti-Money Laundering Act 2018 (c.13) (“the Sanctions Act”) provides that Her Majesty may by Order in Council provide for any provision of Part 1 of that Act, or any regulations under Part 1 of that Act, to extend with or without modifications to any of the British overseas territories. Section 63(4) provides that this includes the power to extend any regulations as amended from time to time. Section 1 of the United Nations Act 1946 (c.45) provides that Her Majesty may by Order in Council make such provision as appears to Her necessary or expedient for enabling the effective application of certain measures where, under Article 41 of the Charter of the United Nations, the Security Council has called upon Her Majesty’s Government in the United Kingdom to apply such measures to give effect to any decision of that Council. In accordance with subsection (2) of that section, such Orders in Council may extend to the British overseas territories. The Afghanistan Regulations were made under Part 1 of the Sanctions Act to establish a sanctions regime which, following the United Kingdom’s withdrawal from the European Union, implement the UN sanctions regime in relation to Afghanistan. Resolution 1988 established the UN sanctions regime in view of the situation in Afghanistan in respect of the Taliban and the threat to the peace, stability and security of Afghanistan. That regime is now given effect by resolution 2255. The Afghanistan Regulations, as modified and extended to the territories by this Order (“the modified Regulations”), provide that persons designated by the UN as associated with the Taliban in constituting a threat to the peace, stability and security of Afghanistan are designated for the purposes of the modified Regulations. Designated persons are subject to financial sanctions, including having their funds or economic resources frozen. The modified Regulations also impose trade restrictions on military goods and technology for persons designated by the UN as associated with the Taliban in constituting a threat to the peace, stability and security of Afghanistan The modified Regulations provide for certain exceptions to this sanctions regime (for example to allow for frozen accounts to be credited with interest or other earnings and to allow acts done for the purpose of national security or the prevention of serious crime). The Governor of a British overseas territory to which the modified Regulations extend may, with the consent of the Secretary of State, issue a licence in respect of activities that would otherwise be prohibited under the modified Regulations. Schedule 2 sets out the purposes pursuant to which the Governor may issue a financial sanctions licence. The modified Regulations also require the Governor of the territory to publish an up-to-date list of designated persons. The modified Regulations prescribe powers for the provision and sharing of information to enable the effective implementation and enforcement of the sanctions regime. The modified Regulations also prescribe enforcement powers in relation to suspected ships, aircraft or vehicles, or for the issue of a search warrant. The modified Regulations make it a criminal offence to contravene, or circumvent, any of the prohibitions in the modified Regulations and prescribe the penalties that apply to such offences. This Order also extends to the territories for the purposes of the modified Regulations specific provisions of Part 1 of the Sanctions Act, namely provisions relating to protection for acts done for purposes of compliance, Crown application and saving for prerogative powers. This Order also provides that, subject to certain exceptions, UN designated persons must not enter, transit or remain in the territories. An Impact Assessment has not been prepared for this instrument: the territorial extent of the instrument and the modified Regulations is the British overseas territories listed in Schedule 1, and no, or no significant, impact is foreseen on the private, voluntary or public sectors in the United Kingdom.

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