UK Offence Report

Duty on test providers to notify results of point of care tests for the detection of SARS-CoV-2 or influenza…

regulation 4D(7) of The Health Protection (Coronavirus, International Travel and Notification) (Wales) (Miscellaneous Amendments) Regulations 2021 (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

7 It is an offence for

a test provider to fail without reasonable excuse to comply with this regulation.

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 This is the text as originally made; later amendments are not shown here.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
breaching the provision
Fault element
Strict liability
Burden of proof
An element of the offence, for the prosecution to prove

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.

“Without reasonable excuse” here is an element of the offence rather than a defence, so its absence is for the prosecution to prove (R v Charles [2009] EWCA Crim 1570).

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision; qualified by reasonable excuse (an element; prosecution disproves once raised).

The defence, as drafted

7 It is an offence for a test provider to fail without reasonable excuse to comply with this regulation.

What would breach regulation 4D(7)?

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. On these words it is an offence to fail without reasonable excuse to comply with this regulation.
  2. Doing what the provision prohibits, or failing to do what it requires under the Health Protection (Coronavirus, International Travel and Notification) (Wales) (Miscellaneous Amendments) Regulations 2021.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
Unlimited
Maximum prison (summary)
Not determined

'to a fine' with no stated maximum.

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
19 September 2021
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 Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations amend the Health Protection (Coronavirus, International Travel) (Wales) Regulations 2020 (S.I. 2020/574 (W. 132)) (the “International Travel Regulations”) and the Health Protection (Notification) (Wales) Regulations 2010 (S.I. 2010/1546 (W. 144)) (“the Notification Regulations”). Part 2 of these Regulations amend the International Travel Regulations. The International Travel Regulations impose requirements on persons entering Wales after having been abroad. Currently the International Travel Regulations provide that coronavirus day 2 and day 8 tests must be carried out by public providers, i.e. by the NHS in Wales, England, Scotland and Northern Ireland. Regulations 3 to 7 of these Regulations open up those tests to private sector test providers, provided they comply with specified requirements, including being appropriately accredited, having specified systems in place and making a declaration to confirm compliance. Notification requirements are also placed upon private test providers of day 2 and day 8 tests. The International Travel Regulations include a requirement for persons arriving in Wales to isolate for a period determined in accordance with those Regulations. Non-exempt persons are prohibited from entering Wales where they have been in a country or territory listed in Schedule 3A to the International Travel Regulations within the last 10 days of arrival, pursuant to regulation 12E of the International Travel Regulations. Regulation 8 of these Regulations amends Schedule 3A to remove Bangladesh, Egypt, Kenya, Maldives, Oman, Pakistan, Sri Lanka and Turkey from the list of countries or territories to which regulation 12E applies. Part 3 of these Regulations amend the Notification Regulations which place obligations on various persons for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination. These Regulations require diagnostic laboratories that process tests, and persons who carry out point of care tests, for the detection of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) or influenza virus, to notify Public Health Wales National Health Service Trust (“Public Health Wales”) of the results of those tests. Regulation 10 makes miscellaneous amendments to regulation 4 of the Notification Regulations in consequence of regulation 11 of these Regulations. Regulation 11 inserts a new regulations 4A, 4B, 4C and 4D into the Notification Regulations. Regulation 4A imposes a requirement on diagnostic laboratories to notify Public Health Wales of the results of the SARS-CoV-2 or influenza virus detection tests which they process. Regulation 4B imposes a requirement on diagnostic laboratories to report additional information where they process tests in accordance with the International Travel Regulations. Regulation 4C is inserted to clarify the obligations on laboratories which perform genomic sequencing of positive samples. Regulation 4D sets out the information that must be provided to Public Health Wales by those who carry out point of care tests for the detection of SARS-CoV-2 or influenza virus. Point of care tests are diagnostic tests which are carried out otherwise than in a diagnostic laboratory. Regulations 4A, 4C and 4D provide that someone who fails without reasonable excuse to comply with those regulations commits an offence for which, on summary conviction, that person would be liable for a fine. Regulation 12 amends regulation 5 of the Notification Regulations to provide that where a notification has been made under regulation 4A, 4B, or 4C Public Health Wales may approach the person who solicited the laboratory test for certain information not provided by the operator of the diagnostic laboratory and obliges that person to provide the information where known. Regulation 13 amends regulation 7 of the Notification Regulations to provide that notifications made under regulations 4A, 4B, 4C and 4D may be made electronically where there is consent. Regulation 14 amends Schedule 1 to the Notification Regulations to include acquired carbapenemase-producing Gram-negative bacteria, Chikungunya virus disease, Tick-borne viral encephalitis, Trichinellosis, West Nile virus infection and Zika virus disease to the list of notifiable diseases. Regulation 15 requires the Welsh Ministers to review the effectiveness of the provisions made in the Notification Regulations by these Regulations before the expiry of the period of 12 months beginning with the day after the day on which they come into force. The Welsh Ministers’ Code of Practice on the carrying out of Regulatory Impact Assessments was considered in relation to these Regulations. 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 these Regulations.

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 0.90.

Basis
the provision says “it is an offence”; the provision says an offence is committed “if” something happens
Confidence
0.90 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