UK Offence Report

Offences and penalty

regulation 3 of The Food with Added Phytosterols or Phytostanols (Labelling) (Wales) Regulations 2005

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

3 Subject to regulation 4, if any person —

a sells any food in respect of which the labelling requirements of Regulation 608/2004 apply and which is not labelled with the specified particulars, or

b sells any food which is not labelled in accordance with regulation 5,

6 or 7, he or she is guilty of an offence and liable on summary conviction to

a fine not exceeding level

5 on the standard scale.

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 This is the text as originally made; later amendments are not shown here.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
selling or supplying something the instrument restricts
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

In any proceedings for an offence under these Regulations, it is a defence for the person charged to prove that the food in respect of which the offence is alleged to have been committed a was intended for export to a country, other than a Member State, which has legislation analogous to Regulation 608/2004 and that the food complies with that legislation; or b wa

What would breach regulation 3?

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. Selling the goods under the Food with Added Phytosterols or Phytostanols (Labelling) (Wales) Regulations 2005 where the instrument prohibits the sale outright.
  2. Supplying without carrying out a check the instrument requires first, even where the sale would otherwise be lawful.
  3. Offering for sale counts as well as selling: displaying stock is enough where the provision reaches an offer.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
£5,000
Standard scale
Level 5
Maximum prison (summary)
Not determined

this is the level 5 value when the instrument came into force (2005-04-30); the standard scale is keyed to the date the offence was committed, and for conduct today the same words mean an unlimited fine.

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
26 April 2005
In force from
30 April 2005
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 Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations, which apply to Wales only, provide for the enforcement of Commission Regulation (EC) No. 608/2004 (OJ No. L97, 1.4.2004, p.44) concerning the labelling of foods and food ingredients with added phytosterols, phytosterol esters, phytostanols and/or phytostanol esters. That Regulation requires such foods and food ingredients to be labelled with additional information, including the words “with added plant sterols/plant stanols”. Regulation 608/2004 was made pursuant to Directive 2000/13/EC of the European Parliament and of the Council (OJ No. L109, 6.5.2000, p.29) on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs (“the Directive”). In consequence, the products covered by Regulation 608/2004 are foods and food ingredients which are to be delivered as such to the ultimate consumer or which are intended for supply to mass caterers. By virtue of Article 13(4) of the Directive, certain small packages and indelibly marked glass bottles are exempt from the labelling requirements of Regulation 608/2004. There is a transitional provision in Article 3 of that Regulation. Pursuant to Articles 14 and 15 of the Directive, these Regulations contain an exemption from the need to be labelled with some of the particulars required by Regulation 608/2004 in the case of food which is not prepacked, certain similar foods and fancy confectionery products (regulation 4). Pursuant to Articles 13(1) and (2) and 14 of the Directive, these Regulations make provision as to the manner of labelling in the case of the required particulars (regulations 5 to 7). These Regulations also — a create offences and prescribe a penalty (regulation 3) and specify enforcement authorities (regulation 8); b provide a defence in relation to exports, in accordance with Articles 2 and 3 of Council Directive 89/397/EEC (OJ No. L186, 30.6.89, p. 23) on the official control of foodstuffs, as read with the ninth recital to that Directive (regulation 9); c incorporate specified provisions of the Food Safety Act 1990 (regulation 10). A regulatory appraisal pursuant to section 65 of the Government of Wales Act 1998 has been prepared for these regulations and placed in the library of the National Assembly for Wales (together with a Transposition Note). Copies may be obtained from the Food Standards Agency, 11th Floor, Southgate House, Wood Street, Cardiff CF10 1EW.

Read the full note and every offence in this 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 is “guilty of 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