UK Offence Report

Amendments to the Export Control Order 2008

article 2(5) of The Export Control (Amendment) Order 2022

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 In article 34, after paragraph (3), insert— 3A A person who contravenes

a prohibition in Part

2 of this Order that is engaged because the person has been informed by the Secretary of State that dual-use goods, software or technology are or may be intended, in their entirety or in part, for use by

a relevant entity referred to in article 12A (military end-use control supplementing the dual-use Regulation), commits an offence and may be arrested. .

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 This is the text as originally made; later amendments are not shown here.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
contravening a requirement of the instrument
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 article 2(5)?

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 the thing the provision prohibits under the Export Control (Amendment) Order 2022, whatever the reason for doing it.
  2. Where the requirement is a positive duty, letting the time for performing it pass without performing it.

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
27 April 2022
In force from
19 May 2022
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 amends the Export Control Order 2008 (S.I. 2008/3231) (“the 2008 Order”), which implements the strategic export controls of the United Kingdom. Articles 2(2) and (3) amend articles 9A and 12 of the 2008 Order and insert articles 12A and 12B to create: a military end-use control supplementing the dual-use Regulation; and exceptions to military end-use control supplementing the dual-use Regulation. Article 2(4) amends article 18 of the 2008 Order to provide for an exception to article 12A in respect of software and technology in the public domain. Articles 2(5) and (6) amend article 34 of the 2008 Order to extend the provisions about offences and penalties concerning contraventions of export and transfer controls to the new military end-use controls. Article 2(7) amends article 40 of the 2008 Order, extending the application of customs powers relating to dual-use goods to the new military end-use control. Article 2(8) amends article 41 of the 2008 Order and extends the application of the Customs and Excise Management Act 1979 information powers with respect to the new military end-use control. Article 2(9) amends article 42N of the 2008 Order to include an exception in relation to the export or transfer from Northern Ireland to the EU customs territory for the new military end-use control. Articles 2(10) to (12) amend Parts 2, 3 and 4 of Schedule 4 to the 2008 Order to move China, the Hong Kong Special Administrative Region and the Macao Special Administrative Region into the list of countries and territories that are embargoed destinations and subject to transit control for military goods. 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. An Explanatory Memorandum is available from the Export Control Joint Unit, Old Admiralty Building, London SW1A 2DY; it is published alongside the instrument at legislation.gov.uk also. In addition, a copy has been placed in the Libraries of both Houses of Parliament.

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 →

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