UK Offence Report

Offence of obstruction

paragraph 21(1) of SCHEDULE 1 of The Market Surveillance (Northern Ireland) Regulations 2021

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 the person—

a intentionally obstructs an enforcer or an officer of an enforcer who is exercising or seeking to exercise

a power under this Schedule,

b intentionally fails to comply with

a requirement properly imposed by an enforcer or an officer of an enforcer under this Schedule, or

c without reasonable cause fails to give an enforcer or an officer of an enforcer any other assistance or information which the enforcer or officer reasonably requires of the person for

a purpose for which the enforcer or officer may exercise

a power under this Schedule.

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 This is the text as originally made; later amendments are not shown here.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

The prosecution must prove both that the conduct happened and that it was done with the state of mind the provision names (intentionally).

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: mens rea word in the offence-creating words: intentionally.

The defence, as drafted

ulations, it is a defence for a person (“P”) to show that P took all reasonable steps and exercised all due diligence to avoid committing the offence. 2 P may not rely on a defence under sub-paragraph (1) which involves a third party allegation unless P has— a served notice in accordance with sub-paragraph (3); or b obtained leave of the court. 3 The notice must— a give any

What would breach paragraph 21(1) of SCHEDULE 1?

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 Market Surveillance (Northern Ireland) Regulations 2021.
  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
Summary only — tried in a magistrates’ court
Maximum fine
£1,000
Standard scale
Level 3
Maximum prison (summary)
Not determined

in Northern Ireland a reference to a level is construed as referring to the standard scale as it currently stands (Fines and Penalties (NI) Order 1984 art.5(3)), not as it stood when the instrument was made.

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
15 July 2021
In force from
16 July 2021
Extent
N.I.

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 extend to Northern Ireland only and are made under section 8C of the European Union (Withdrawal) Act 2018 (c. 16) to implement certain provisions of Regulation (EU) No 2019/1020 of the European Parliament and of the Council of 20 June 2019 on market surveillance and compliance of products (“Regulation 2019/1020”). Regulation 2019/1020 comes into force on 16 July 2021. It repeals and replaces the market surveillance chapter (Articles 16-29) of Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products (OJ L 218, 13.8.2008, p.30-47) which is included in Annex 2 to the Protocol on Ireland/Northern Ireland to the withdrawal agreement. Regulation 2019/1020 is directly applicable in Northern Ireland by virtue of section 7A of the European Union (Withdrawal) Act 2018 (c. 16) and Article 13(3) of, and Annex 2 to, the Protocol, although some Articles of Regulation 2019/1020 require implementation in domestic legislation. Article 14(4) of Regulation 2019/1020 sets out a range of investigatory and enforcement powers which are to be made available to the UK authorities who enforce the market surveillance regime for products subject to the harmonised EU requirements that continue to apply in Northern Ireland. These powers should be used to enforce both Regulation 2019/1020 and the existing requirements in product-specific EU legislation listed in Annex 1 to Regulation 2019/1020. Article 41 of Regulation 2019/1020 requires that suitable penalties are in place to enforce contraventions of Regulation 2019/1020 by economic operators. In particular, new penalties are needed to implement the requirements of Article 4, Article 5 and Article 7 of Regulation 2019/1020. These Regulations set out those enforcement powers and offences which are necessary to give effect to Regulation 2019/1020 and provides for an effective and proportionate penalty regime for breaches of the Regulation. An Explanatory Memorandum is published alongside these Regulations on www.legislation.gov.uk . 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

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 “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