UK Offence Report

Offences relating to authorisation under Article 3c of the 2003 Regulation

article 2B(2) of The Export Control (Somalia) (Amendment) Order 2020 (revoked)

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 A person commits an offence if the person—

a purports to act under authorisation; and

b fails to comply with any requirement or condition of that authorisation.

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 This is the text as originally made; later amendments are not shown here.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
failing to comply with a notice or direction
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; other provisions of the same instrument use a mens rea word while this one does not (the Cundy v Le Cocq contrast).

What would breach article 2B(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. Being served with a notice under the Export Control (Somalia) (Amendment) Order 2020 and doing nothing by the date it specifies.
  2. Doing part of what the notice requires, where it required all of it.
  3. Disagreeing with the notice and ignoring it, rather than using whatever appeal the instrument provides.

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
4 June 2020
In force from
1 July 2020
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, which comes into force on 1st July 2020, amends the Export Control (Somalia) Order 2011 (S.I. 2011/146) (“the 2011 Order”). The Order implements the obligation of the United Kingdom under Article 7(1) of Council Regulation (EC) No 147/2003 of 27 January 2003 concerning certain restrictive measures in respect of Somalia (OJ No. L 24, 19.1.2003) (“the 2003 Regulation”) in relation to Article 3c of that Regulation. Article 7(1) of the 2003 Regulation requires the United Kingdom to determine effective, proportionate, and dissuasive sanctions to be imposed for infringements of the 2003 Regulation. Article 3c of the 2003 Regulation prohibits the unauthorised sale, export, supply, or transfer, directly or indirectly, to Somalia of improvised explosive devices components listed in Annex III of the 2003 Regulation. Article 3c of, and Annex III to, the 2003 Regulation were inserted into the 2003 Regulation on 8th February 2020 by Article 1(4) and (5) of Council Regulation (EU) 2020/169 of 6 February 2020 amending Regulation (EC) No 147/2003 concerning restrictive measures in respect of Somalia (OJ No. L 36, 7.2.2020, p. 1). The Order also makes amendments to the 2011 Order in relation to Council Regulation (EU) No 356/2010 of 26 April 2010 imposing certain specific restrictive measures directed against certain natural or legal persons, entities or bodies, in view of the situation in Somalia (OJ No. L 105, 27.4.2010, p.1) (“the 2010 Regulation”). Article 3 amends article 1(2) of the 2011 Order (which relates to interpretation) to: insert a definition of “the 2003 Regulation”, which references the 2003 Regulation as amended from time to time; replace the definition of “the Regulation” with a definition of “the 2010 Regulation”, which references the 2010 Regulation as amended from time to time. Amendments to the 2003 Regulation and the 2010 Regulation are indexed by the National Archives. The indexes may be found online at: http://www.legislation.gov.uk/changes/affected/eur/2003/147 (the 2003 Regulation); http://www.legislation.gov.uk/changes/affected/eur/2010/356 (the 2010 Regulation). Article 4 amends article 2 of the 2011 Order (which relates to the 2010 Regulation) to revise the heading of, and to update the cross-references in, the article. Article 5, in part, inserts articles 2A and 2B into the 2011 Order and creates the following offences: An offence for a person, without prior authorisation, to sell, export, supply or transfer, directly or indirectly, to Somalia improvised explosive devices components listed in Annex III of the 2003 Regulation; An offence for a person, for the purpose of obtaining authorisation, to knowingly or recklessly make a statement or furnish a document or information which is false in a material particular; An offence for a person to purport to act under authorisation but fail to comply with any requirement or condition of that authorisation. An offence under article 2A or 2B may be committed by a United Kingdom person (as defined in section 11 of the Export Control Act 2002 (c. 28)) in relation to acts done by that person outside the United Kingdom. Authorisation for the purposes of articles 2A and 2B is authorisation granted under Article 3c(1) of the 2003 Regulation to sell, export, supply or transfer, directly or indirectly, to Somalia an improvised explosive devices component listed in Annex III to the 2003 Regulation. Authorisation may be obtained in the United Kingdom by application to the Export Control Joint Unit (a part of the Department for International Trade) using the SPIRE online licensing system. Further information may be found online at: https://www.gov.uk/government/organisations/export-control-organisation (the Export Control Joint Unit); https://www.spire.trade.gov.uk/ (the SPIRE online licensing system). Article 5 also inserts article 2C into the 2011 Order and modifies the application to the prohibition imposed by Article 3c(1) of the 2003 Regulation of relevant offence provisions in the Customs and Excise Management Act 1979 (c. 2). The modifications align the penalty for offences relating to attempted exportation and attempt at evasion with the penalty in the 2011 Order for contravening Article 3c(1) of the 2003 Regulation and resolve corresponding offences relating to exportation and fraudulent evasion in favour of the 2011 Order. Article 6 amends article 4 of the 2011 Order to set out the penalties for a person found guilty of an offence under article 2A or 2B. The penalties are within the limitation set out in section 7(1)(g) of the Export Control Act 2002 (c. 28). Article 7 amends article 5 of the 2011 Order to revise the application to the Order of the information powers under section 77A of the Customs and Excise Management Act 1979 (c. 2; section 77A was inserted by section 10 of the Finance Act 1987 (c. 16) and amended by S.I. 1992/3095). 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. A copy of the Explanatory Memorandum is published alongside this instrument on http://www.legislation.gov.uk/.

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 →

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