UK Offence Report

“non-Territory country”; b after paragraph (4) insert— 4A A person who contravenes a prohibition in…

paragraph 36 of SCHEDULE 2 of The Democratic People’s Republic of Korea (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

36 In regulation 52 (gold, precious metals or diamonds)—

a in paragraph (3)(c), for “non-UK country” substitute “non-Territory country”;

b after paragraph (4) insert— 4A A person who contravenes

a prohibition in paragraph (1) commits an offence, but it is

a defence for

a person charged with the offence of contravening paragraph (1) (“P”) to show that P did not know and had no reasonable cause to suspect that the export was to

a DPRK Government person. 4B A person who contravenes

a prohibition in paragraph (2) commits an offence, but it is

a defence for

a person charged with the offence of contravening paragraph (2) (“P”) to show that P did not know and had no reasonable cause to suspect that the gold, precious metals or diamonds were consigned from

a DPRK Government person.

c in paragraph (6)—

i for the definition of “non-UK country” substitute— “non-Territory country” means

a country that is not the Territory;

ii in the definition of “third country”, for “United Kingdom, the Isle of Man” substitute “Territory”.

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 This is the text as originally made; later amendments are not shown here.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
Legal burden on the defendant

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 gives a defence the defendant must prove, on the balance of probabilities. A legal burden of that kind can be read down to a merely evidential one under section 3 of the Human Rights Act 1998 where placing it on the defendant would be disproportionate (R v Lambert [2001] UKHL 37; Sheldrake v DPP [2004] UKHL 43).

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

The defence, as drafted

enes a prohibition in paragraph (1) commits an offence, but it is a defence for a person charged with the offence of contravening paragraph (1) (“P”) to show that P did not know and had no reasonable cause to suspect that the export was to a DPRK Government person. 4B A person who contravenes a prohibition in paragraph (2) commits an offence, but it is a defence for a person charged with the offence of contravenin

What would breach paragraph 36 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. On these words an offence is committed where a person contravenes a prohibition in paragraph (1).
  2. Moving the goods across the border under the Democratic People’s Republic of Korea (Sanctions) (Overseas Territories) Order 2020 without the licence the instrument requires.
  3. Holding a licence for one consignment and using it for another.
  4. 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 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
16 December 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 Democratic People’s Republic of Korea (Sanctions) (EU Exit) Regulations 2019 (S.I. 2019/411) (“the DPRK 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 8(e) of resolution 1718 (2006) adopted by the Security Council on 14 October 2006 (which in the United Kingdom is implemented by way of the Immigration Act 1971 (c.77) rather than the DPRK 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 DPRK Regulations were made under Part 1 of the Sanctions Act 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. The DPRK Regulations, as modified and extended to the British overseas territories listed in Schedule 1 by this Order (“the modified Regulations”), provide that a person named by the UN or designated by the Secretary of State for being, or having been, involved in certain activities, is a designated person for the purposes of the modified Regulations. Designated persons are subject to various sanctions measures set out in the modified Regulations. The modified Regulations also provide for certain ships specified by the Secretary of State to be subject to various sanctions measures. The modified Regulations make provision in respect of publishing lists of designated persons and specified ships. Chapter 1 of Part 4 of the modified Regulations 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 of the modified Regulations provides that persons designated by the Secretary of State in the United Kingdom – who as a consequence are ‘excluded persons’ under section 8B of the Immigration Act 1971 – must not enter, transit or remain in the British overseas territories set out in Schedule 1 to this Order. Part 6 of the modified Regulations 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 of the modified Regulations deals with aircraft sanctions and Part 8 with shipping sanctions. Part 9 of 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 or direction in respect of activities that would otherwise be prohibited under the modified Regulations. Schedule 3 sets out further provision about the purposes for which the Governor may issue a financial sanctions licence in some cases. 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, and 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. The modifications set out in Schedule 2 to this Order include modifications to provisions in the Regulations which are prospectively amended by the Sanctions (EU Exit) (Miscellaneous Amendments) Regulations 2020 (S.I. 2020/591) and the Sanctions (EU Exit) (Miscellaneous Amendments) (No. 3) Regulations 2020 (S.I. 2020/950) (“the amending regulations”). Therefore, article 1(1) provides that this Order comes into force immediately after both the amending regulations have come into force in the United Kingdom. The amending regulations will be brought into force on a day appointed by the Secretary of State in regulations under section 56 of the Sanctions Act. 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 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 0.96.

Basis
the provision says a person “commits an offence”
Confidence
0.96 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