UK Offence Report

Application of criminal law

article 5(2) of The Channel Tunnel (Arrangements with the Kingdom of the Netherlands) 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

2 Any act or omission which—

a takes place inside the United Kingdom in

a control zone and relates to an officer belonging to the Kingdom of the Netherlands; and

b would constitute an offence under

a frontier control enactment if it took place in relation to an officer belonging to the United Kingdom, shall be treated for the purposes of that enactment as if it were an act or omission which had taken place in relation to an officer belonging to the United Kingdom.

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 This is the text as originally made; later amendments are not shown here.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
an officer
Conduct
breaching the provision
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 an officer 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 article 5(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. Doing what the provision prohibits, or failing to do what it requires under the Channel Tunnel (Arrangements with the Kingdom of the Netherlands) Order 2020.

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
27 August 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 implements into United Kingdom law the provisions of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of the Netherlands concerning Border Controls on Rail Traffic between the Netherlands and the United Kingdom using the Channel Fixed Link. Those provisions (“the international articles”) are by article 3(1) given the force of law in the United Kingdom within, and for the authorised purposes (see article 2(1)) outside, the control zone accorded to the Netherlands by the international articles (“the Netherlands control zone”). Article 3(2) provides that officers from the Netherlands may to the extent specified in the international articles, go about their business (essentially, the operation of Netherlands frontier controls as defined in the international articles) in the United Kingdom. Article 3(3) ensures that those officers can be provided with the necessary facilities. Article 4(1), by extending relevant enactments to the control zone accorded to the United Kingdom in the Netherlands (“the United Kingdom control zone”), performs the corresponding operation for British officers working there. Article 4(2) applies the Equality Act 2010 (c.15) to the carrying out of functions of United Kingdom immigration officers in a control zone in the Netherlands. Article 4(3) and (4) alters the application of the Data Protection Act 2018 (c.12) so that data processed by United Kingdom officers in the Netherlands control zone are, but data processed by officers from the Netherlands in the United Kingdom control zone are not, subject to that Act. Article 5(1) and (2) extends English criminal jurisdiction to conduct in the United Kingdom control zone which, if taking place in England, would constitute an offence under a frontier control enactment as defined in the Schedule. Article 5(6) creates a presumption as to jurisdiction over offences committed where provision is made under the international articles. Article 6 provides that the frontier control enactments (defined in article 2(1)) have effect for the purposes of this Order with the modifications set out in Schedule 4 to the Channel Tunnel (International Arrangements) Order 1993 (S.I. 1993/1813). Article 7 allows the Secretary of State to charge operators reasonable fees in the tunnel system in relation to their functions under or by virtue of this Order. Article 8 amends article 4 of this Order from IP completion day to take account of changes to data protection provisions arising from the United Kingdom’s exit from the European Union. The Schedule sets out the international articles and the attached protocol. A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sectors is foreseen.

Read the full note and every offence in this instrument

How this became law

This instrument became law without a vote to approve it. A non-fatal motion to object was tabled, which records disapproval without stopping the instrument.

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 0.75.

Basis
the provision says the conduct “constitutes an offence”
Confidence
0.75 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