UK Offence Report

2 A person commits an offence if, for the purpose of procuring the issue of a plant passport, a replacement…

article 46(2) of The Plant Health (Wales) Order 2018 (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, for the purpose of procuring the issue of

a plant passport,

a replacement plant passport,

a phytosanitary certificate,

a phytosanitary certificate for re-export or

a licence under this Order, the person—

a knowingly or recklessly makes

a statement which is false in

a material particular; or

b intentionally fails to disclose any material information.

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 This is the text as originally made; later amendments are not shown here.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
making a false or misleading statement
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, knowingly, knowingly or recklessly, recklessly).

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: knowingly, intentionally, recklessly, knowingly or recklessly.

The defence, as drafted

lant passport; or c dishonestly re-uses a plant passport. 4 It is a defence for a person charged with an offence under paragraph (1)(a)(xvii) to prove that the person reasonably believed— a that the disclosure was lawful; or b that the information had already and lawfully been made available to the public. 5 If an offence under this Order is proved to have been committed with the consent or connivance of, o

What would breach article 46(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. Entering a figure on a form or return that is known to be wrong under the Plant Health (Wales) Order 2018.
  2. Leaving out something the form asks for, where the omission is what makes the answer misleading.
  3. Producing a document to an official that has been altered since it was issued.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
Not determined
Standard scale
Level 5
Maximum prison (summary)
Not determined
Maximum prison (on indictment)
3 months

the level is stated but no money value is given: this instrument extends outside the United Kingdom, where the standard scale set by s.122(1) of the Sentencing Act 2020 does not run.

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
9 October 2018
In force from
2 November 2018
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 replaces the Plant Health (Wales) Order 2006 (S.I. 2006/1643 (W. 158)) and the Plant Health (Phytophthora ramorum) (Wales) Order 2006 (S.I. 2006/1344 (W. 134)). It implements Council Directive 2000/29/EC on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community (OJ No L 169, 10.7.2000, p. 1) and related European Union plant health legislation. It also implements instruments including: a Commission Implementing Decision 2014/690/EU repealing Decision 2006/464/EC on provisional emergency measures to prevent the introduction into and the spread within the Community of Dryocosmus kuriphilus Yasumatsu (OJ No L 288, 2.10.2014, p. 5); b Commission Implementing Decision (EU) 2015/749 repealing Decision 2007/410/EC on measures to prevent the introduction into and the spread within the Community of Potato spindle tuber viroid (OJ No L 119, 12.5.2015, p. 25); c Commission Implementing Decisions (EU) 2015/789, (EU) 2016/764 and (EU) 2017/2352 as regards measures to prevent the introduction into and the spread within the Union of Xylella fastidiosa (Wells et al.) (OJ No L 125, 21.5.2015, p. 36), (OJ No L 126, 14.5.2016, p. 77) and (OJ No L 336, 16.12.2017, p. 31); d Commission Implementing Decision (EU) 2015/893 as regards measures to prevent the introduction into and the spread within the Union of Anoplophora glabripennis (Motschulsky) (OJ No 146, 11.6.2015, p. 16); e Commission Implementing Decision (EU) 2015/1199 recognising Bosnia and Herzegovina as being free from Clavibacter michiganensis ssp. sepedonicus (Spieckerman and Kotthof) Davis et al. (OJ No L 194, 22.7.2015, p. 42); f Commission Implementing Decisions (EU) 2016/715 and (EU) 2017/801 setting out measures in respect of certain fruits originating in certain third countries to prevent the introduction into and the spread within the Union of the harmful organism Phyllosticta citricarpa (McAlpine) Van der Aa (OJ No L 125, 13.5.2016, p. 16) and (OJ No L 120, 11.5.2017, p. 26); g Commission Implementing Decision (EU) 2016/1359 amending Implementing Decision 2012/270/EU as regards emergency measures to prevent the introduction into and the spread within the Union of Epitrix cucumeris (Harris), Epitrix similaris (Gentner), Epitrix subcrinata (Lec.) and Epitrix tuberis (Gentner) (OJ No L 215, 10.8.2016, p. 29); h Decision No 1/2015 of the Joint Committee on Agriculture concerning the amendment to Appendices 1, 2 and 4 to Annex 4 to the Agreement between the European Community and the Swiss Confederation on trade in agricultural products (OJ No L 27, 1.2.2017, p. 155); i Commission Implementing Decision (EU) 2017/198 as regards measures to prevent the introduction into and the spread within the Union of Pseudomonas syringae pv. actinidiae Takikawa, Serizawa, Ichikawa, Tsuyumu & Goto (OJ No L 31, 4.2.2017, p. 29); j Commission Implementing Decision (EU) 2017/2374 setting out conditions for movement, storage and processing of certain fruits and their hybrids originating in third countries to prevent the introduction into the Union of certain harmful organisms (OJ No L 337, 19.12.2017, p. 60); and k Commission Implementing Directives (EU) 2017/1279 and (EU) 2017/1920 amending Annexes 1 to V to Council Directive 2000/29/EC on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community (OJ No L 184, 15.7.2017, p. 33) and (OJ No L 271, 20.10.2017, p. 34). Part 1 is introductory and includes definitions. Article 2(5) provides for references to the European Union instruments listed in that provision to be read as references to those instruments as amended from time to time. Part 2 applies to plant pests and relevant material coming from countries outside the European Union, including relevant material from third countries coming via another part of the European Union where the Welsh Ministers have agreed to carry out certain checks on that material. “Relevant material” is defined in article 2(1). Article 5 prohibits the landing in Wales of certain plant pests and relevant material and imposes restrictions on other relevant material which may be imported into Wales from third countries. Article 6 requires importers of controlled imports of relevant material to provide the Welsh Ministers with advance notice of their landing and article 7 requires those imports to be accompanied by the appropriate phytosanitary certificate. Articles 10 to 12 prohibit the removal of this relevant material from an area of plant health control until an inspector has inspected the material and is satisfied that the material can be discharged. Article 8 exempts certain relevant material which is brought into Wales in a person’s baggage from the requirements in article 5 and other related requirements. Part 3 applies to plant pests and relevant material from the European Union (whether originating in the European Union or in third countries). Articles 18 to 20 prohibit the introduction into Wales of certain plant pests and relevant material from another part of the European Union and contain prohibitions and restrictions on the movement of plant pests and relevant material and other activities in Wales. Article 21 requires certain relevant material to be accompanied by a plant passport when it is moved within Wales or consigned to another part of the European Union. Part 4 imposes a requirement on plant traders to be registered in respect of any activity which they carry out and which is regulated by the Order (articles 25 to 28) and makes provision for the Welsh Ministers to authorise plant traders to issue plant passports (article 29). Part 5 contains special arrangements governing relevant material from Switzerland. Part 6 contains general enforcement powers given to plant health inspectors. Part 7 imposes additional requirements in relation to certain solanaceous species (potatoes and tomatoes). Part 8 makes provision for the Welsh Ministers to grant licences authorising activities which would otherwise be prohibited by the Order. Part 9 requires certain plant pests which are present or suspected to be present in Wales to be notified to the Welsh Ministers or an inspector and makes provision for inspectors to request information about certain plant health matters. Part 10 contain offences for non-compliance with the Order and with requirements imposed under article 46. Article 47 sets out the penalties for the offences. (Contravention of any prohibition on landing imposed by this Order is an offence under the Customs and Excise Management Act 1979 (c. 2)). Part 11 deals with revocations and transitional provisions. The Welsh Ministers’ Code of Practice on the carrying out of Regulatory Impact Assessments was considered in relation to this Order. As a result, it was not considered necessary to carry out a regulatory impact assessment as to the likely costs and benefits of complying with this Order.

Read the full note and every offence in this instrument

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