UK Offence Report

Prohibition on supply etc.

paragraph 4(5) of SCHEDULE 2 of The Construction Products (Amendment etc.) (EU Exit) Regulations 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

5 A person who supplies a construction product in respect of Great Britain to which— a the CE marking; or b the CE marking and accompanying UK(NI) indication, has been affixed in breach of any provision of Article 8 or 9 of the EU Construction Products Regulation shall be guilty of an offence.

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 This is the text as originally made; later amendments are not shown here.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
selling or supplying something the instrument restricts
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 paragraph 4(5) 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. Selling the goods under the Construction Products (Amendment etc.) (EU Exit) Regulations 2020 where the instrument prohibits the sale outright.
  2. Supplying without carrying out a check the instrument requires first, even where the sale would otherwise be lawful.
  3. Offering for sale counts as well as selling: displaying stock is enough where the provision reaches an offer.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
Unlimited
Standard scale
Level 5
Maximum prison (summary)
3 months

level 5 is unlimited in England and Wales for offences committed on or after 12 March 2015 (LASPO 2012 s.85, S.I. 2015/664).

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
26 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 Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations amend the Construction Products (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/465) (“the 2019 Regulations”) before they come into force, and also make additional standalone provision in relation to Northern Ireland. Broadly the amendments in this instrument restrict the amendments in the 2019 Regulations so instead of having effect in relation to the United Kingdom they have effect in relation to Great Britain only. Schedule 2 amends the Construction Products Regulations 2013 (S.I. 2013/1387) so that the enforcement rules in those Regulations apply only in relation to the construction products regime in Great Britain (and not the whole of the United Kingdom). Schedule 3 sets out enforcement rules in relation to the construction products regime in Northern Ireland. Regulation 3 and Schedule 1 make amendments to Schedule 1 to the 2019 Regulations. Schedule 1 to the 2019 Regulations amends Regulation (EU) No 305/2011 of the European Parliament and of the Council of 9 March 2011 laying down harmonised conditions for the marketing of construction products and repealing Council Directive 89/106/EEC as it had effect immediately before IP completion day to correct deficiencies. The amendments in Schedule 1 to this instrument provide for the amendments in Schedule 1 to the 2019 Regulations to have effect in relation to Great Britain only (in Northern Ireland existing EU law, not retained EU law will continue to apply). Regulation 3 and Schedule 2 make amendments to Schedule 2 to the 2019 Regulations. Schedule 2 to the 2019 Regulations amends the Construction Products Regulations 2013 to make consequential corrections on the UK exiting the European Union. The amendments in Schedule 2 to this instrument amend Schedule 2 to the 2019 Regulations so the Construction Products Regulations have effect in relation to Great Britain only (the enforcement rules which will apply in respect of Northern Ireland are set out in Schedule 3 to this instrument (see below)). Regulation 4 makes provision to implement the Ireland/Northern Ireland Protocol to the Withdrawal Agreement. In particular, it provides a number of glosses to Regulation (EU) No 305/2011 of the European Parliament and of the Council of 9 March 2011 laying down harmonised conditions for the marketing of construction products and repealing Council Directive 89/106/EEC as it has effect in EU law as amended from time to time, including providing for an accompanying product marking ie the UK(NI) indication. Regulation 5 and Schedule 3 make provision for the enforcement of the EU law construction products regime in respect of Northern Ireland. Schedule 3 makes provision in respect of Northern Ireland which is akin to the provisions of the Construction Products Regulations 2013 (S.I. 2013/1387), with provisions not relevant to Northern Ireland being removed. The effect of the Schedule is to maintain the status quo from IP completion day and to implement the Ireland/Northern Ireland Protocol to the EU Withdrawal Agreement as it applies to construction products. The Ireland/Northern Ireland Protocol provides in certain cases for use of product marking ie the UK(NI) indication. Consequently, paragraphs 3, 4 and 5 of Schedule 3 provide for new offences in relation to affixing etc of the UK(NI) indication on construction products. Paragraphs 6 and 7 (suspension notices) make provision for the service of notices by an enforcement authority suspending the supply of construction products on grounds of the commission of an offence under paragraphs 3, 4 or 5, or on grounds relating to breach of certain provisions of Regulation (EU) No 305/2011 of the European Parliament and of the Council of 9 March 2011 laying down harmonised conditions for the marketing of construction products and repealing Council Directive 89/106/EEC as it has effect in EU law as amended from time to time, and for appeals against suspension notices. Offences are provided for in respect of breach of notices. Paragraph 9 makes provision for forfeiture of construction products on grounds similar to those for the service of suspension notices. Paragraph 10 requires enforcement authorities to send certain details in relation to suspension notices to the Secretary of State. Paragraphs 11 to 14 of Schedule 3 make provision for the service of notices by the Secretary of State prohibiting the supply of construction products, and requiring the issue of warnings in relation to construction products, on grounds of the commission of an offence under paragraphs 3 or 4, or on the grounds set out in paragraph 16. Offences are provided for in respect of breach of notices. Provision is also made for the procedure by which representations may be made against the grounds for service of a prohibition notice, and for notice to be given in advance of service of a notice to warn, and for a procedure for representations to be made against the service of the notice. Paragraph 15 of Schedule 3 provides a power for the Secretary of State to require information to be provided to assist in deciding whether to serve prohibition notices and notices to warn, with an offence for non-compliance or provision of false information. Paragraph 17 enables district councils in Northern Ireland, amongst other things, to carry out market surveillance in their areas. Paragraph 18 of Schedule 3 empowers them to investigate and prosecute in relation to offences anywhere in Northern Ireland. Paragraphs 19 and 20 govern powers of entry, search and seizure in connection with failures to comply with the requirements of the EU Construction Products Regulation and offences under Part 2 of the Schedule. Paragraph 21 provides offences for obstructing, or giving false information to, an officer of an enforcement authority. Paragraph 22 covers appeals against detention of products. Paragraph 23 deals with compensation in certain circumstances in relation to seizure or detention of products and paragraph 24 provides for recovery of expenses, for example from a person who is convicted. Paragraph 25 provides an offence for disclosure of information obtained. Paragraphs 26 and 27 provide for a due diligence defence in certain cases and for other persons whose acts or default caused the principal offender to commit the offence to also be guilty of an offence. Paragraph 28 covers service of documents and paragraph 29 sets out the long stop date for commencing proceedings for an offence under paragraph 3(1) or (4). Paragraph 30 contains transitional provisions in relation to enforcement action which was started before the end of IP completion day under the Construction Products Regulations 2013. An impact assessment has not been produced for this instrument as no significant impact on the private, voluntary or public sector is foreseen.

Read the full note and every offence in this instrument

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”
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